The fate of the judiciary as an institution, and our fate as a democratic nation, hinges on whether we, as a people speak out, or watch passively.
Justice D.Y. Chandrachud of the Supreme Court recently remarked that India needed to rethink the power of dissent. Delivering the presidential address at an event organised by O.P. Jindal Global Law University at the Indian Law Institute on January 11, he highlighted the three most powerful dissents in the history of the Indian legal system – by Justice Saiyid Fazl Ali, Justice Subbarao and Justice H.R. Khanna – and hit the nail on it head when he observed that there was perhaps something about Indian culture that made one want to accommodate rather than dissent.
As India enters the 69th year of becoming a republic, a quick recap of the three famous dissents that stood the test of time and were exalted by history may be worthwhile.
First, in the famous case of A.K. Gopalan v. State of Madras (AIR 1950 SC 27), where the Preventive Detention Act IV of 1950 was being challenged, Justice Saiyid Fazl Ali dissented from his brother judges and gave a powerful exposition. He said all the fundamental rights enshrined in the constitution do not act as separate codes unto themselves, and have to be read together as they overlap. This reading of the fundamental rights is now established, but at that time, his dissent was just that – a dissent and a minority voice.
Take the second example in the case of Kharak Singh v. State of Uttar Pradesh (AIR 1963 SC 1295) pertaining to surveillance by the police and domiciliary visits. In his dissenting judgment, Justice Subba Rao widened the scope of personal liberty and remarked, writing as he was in 1963 – “It is true our constitution does not expressly declare a right to privacy as a fundamental right, but the said right is an essential ingredient of personal liberty.”
It is only in 2017 that the Supreme Court, in its historic judgment delivered by the nine-judge bench in K.S. Puttaswamy and Ors. v. UOI and Ors., overturned the Kharak Singh and held that right to privacy was a fundamental right under the Indian constitution, thereby vindicating what Justice Subba Rao had said in his dissenting opinion in the Kharak Singh case.
Let’s turn to the third dissent in the history of the Indian legal system. Justice H.R. Khanna in ADM Jabalpur v. Shivkant Shukla (AIR 1976 SC 1207) dissented from the majority judges who held that the right to approach court for enforcement of fundamental rights was suspended during the Emergency and there will no locus standi (right to have a standing before court) to file a writ of habeas corpus or any other writ. In his now famous words, Justice Khanna laid down the power of dissent. His remarks merit reproduction:
“Before I part with the case, I may observe that the consciousness that the view expressed by me is at variance with that of the majority of my learned brethren has not stood in the way of my expressing the same. I am aware of the desirability of unanimity, if possible. Unanimity obtained without sacrifice of conviction comments the decision to public confidence. Unanimity which is merely formal and which is recorded at the expense of strong conflicting views is not desirable in a court of last resort. As observed by Chief Justice Hughes Prophets’; with Honor by Alan Earth 1974 Ed. p. 3-6 judges are not there simply to decide cases, but to decide them as they think they should be decided, and while it may be regrettable that they cannot always agree, it is better that their independence should be maintained and recognized than that unanimity should be secured through its sacrifice. A dissent in a court of last resort… is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.”
The power of dissent, both through judgments and otherwise, has taken a new dimension in India with the latest turn of events in the Supreme Court, when four judges held a press conference in an attempt to save their souls (in their own words) and speak to the nation about the misgivings taking place in the highest court of the land, directly questioning the Chief Justice of India.
The turn of events, ever since that press conference, is not only capable of making every right thinking person in India get uncomfortable in her slumber, but also has the power to stir the nation’s conscience.
For once, the secret is out. It is not just little girls in India who are told to hush up, listen and not speak, agree and not question, discuss but not dissent and never ever to talk ‘oh so loud’, but also the highest judges of the highest court. The deafening silence of power blows through not just the lowliest huts, but also through the strong pillars of the Indian Supreme Court, it seems.
In the name of decorum, tradition, convention, the old and dusty files of yesteryear keep piling up, with the screeching sound of justice breathing its last. If the judges, who are to judge, cannot question what goes on after the business hours, who in India will believe that lady justice is anything but a blindfolded pretty statuette? Should convention demand that one remains silent forever, or only express one’s dissent behind closed doors, or on pages investing in ink? Can’t the judges of the world’s largest democracy come out and speak to the people at large, and do so with an awareness that these are extraordinary situations, demanding extraordinary solutions? The nation is divided, but what happens next will shape the culture of dissent in India.
Let’s not talk of judges alone. Aren’t political parties in India structured around the power of silence too? For, who will bell the cat, has been the question everyone asks, but without making any sound. Who will argue against the stifling of creativity and the emphasis on reproducing rote learning in the very spaces supposed to be citadels of knowledge? Who will ensure that red does not turn into saffron? Who will regulate the doctors? Prime Minster Narendra Modi cannot be the guess answer for every question. In fact, his failure to heed dissent is part of the problem. We are left to ourselves, as individuals and as a nation, to think harder about the power of dissent and our twisted relationship with it.
In the epic Mahabharata, when Draupadi shrieked, we remained silent. When invaders came, we looked away. When rights were suspended, we spoke with muffled voices. When innocents were butchered in the name of religion, we thought of revenge. Each of these silences has cost us more than lives. These silences cost us time, and threw us decades behind where we should have been. Whenever they were dissenting voices, we left them alone to fight, for, aren’t dissenters inherently loners? They are lonely enough as they do not fearing loss of power, money and fame. It is the inherent power of dissent that helps them build the foundation of democracy on which we build our comfortable villas. It is their power of dissent that keeps a nation afloat.
Why then is the power of silence still given primacy over the power of dissent? Why shouldn’t we teach our children about the power of dissent – that changed the narrative of the Indian freedom struggle from violence to non-violence? Why shouldn’t we teach our youth the power of dissent, when breaking a law (of making salt) paved the way for freedom from bondage? Why don’t we teach our kids that decorum and tradition do not tell us to look away, to keep the dirt under our feet, but instead keep our waters clean so that anyone can measure its depths.
One wonders whether the act of the four judges in breaking their silence and exercising the power of dissent was just by virtue of their interpretation of the constitutional convention that required them to speak, or whether it was constitutional morality that they invoked, or whether they just plainly said that they, too, like all, had a right to dissent. Whichever of these routes was adopted, the judges’ dissent will have a bearing on the culture of dissent, and the power it acquires in this crossroad of history, and on how the future will look at this heroic act of the four judges. It remains to be seen whether dissent does what it seeks to do i.e. disrupt the status quo by making public what only a few know. Whether people then step in to take on the mantle or leave the dissenting voices to die an unknown death. Whether history will do justice, if the present fails to. Whether amid all this cacophony, the sound of the right, the just and the moral prevails, or whether hard-hitting realists have the day.
The fact that the four dissenting judges are not on any of the constitutional benches that will decide Aadhaar, Section 377 and the Sabrimala issue, may hold an answer to these questions or, maybe, this is only half the story. For the rest of the story, we will have to wait. But what will influence the final outcome of this war of dissent heralded by the four judges will be determined by whether we wait actively, playing our roles and speaking out, or wait passively, doing nothing about it. This will decide the fate of the judiciary as an institution and our fate as a democratic nation.
For now, more power to the voice of dissent – for although it may look cold and lonely from one angle, the Indian people have proved themselves to know better.
Avani Bansal is an advocate at the Supreme Court of India.