Dissenting Opinions of Judges in the Supreme Court

Since independence, on several occasions, the judges of the Supreme Court of India have expressed dissenting opinions on reforming the law as well as correcting errors of the majority of the opinion in the judgments. The dissenting opinion strengthens the value of free speech and expression when it is used for arriving at a decision based on effective and judicious considerations. However, in India, in most cases, the judges either concur or supplement the majority opinion. It is also observed that there is a gradual decline in use of free expression of dissent. The declining trend of dissenting opinions raises several questions about capability and credibility of the Indian judicial system.

The trend of dissenting opinions

• During the first two decades, the cases of dissenting opinion are relatively more. Particularly, the 1960-70 period, had the highest rate of interest. Some of the great dissenting judges during this period include Justices A K Sarkar, Hidayatullah, Vivian Bose, K Subba Rao, etc.
• During the third decade, there was a sudden decline in the rate of dissent. This may be due to the fact the judiciary during this period was overshadowed either by internal forces such as influence of CJI or by external forces like the government. The period also witnessed judicial appointments which were heavily politicised.
• The 11-judge bench (1993) had created a collegium system for judicial appointments. But the collegium system failed to bring the qualitative change in judgement delivery of the Supreme Court despite the autonomy given to judges in their appointment. Along with no improvements in the quality of judgements, the cases of dissent opinion were also considerably reduced.
• The increasing workload may be one of the reasons for decline in disagreement in the bench. The focus of the bench is to dispose the case as early as possible even at the cost of quality of judgement. It goes against the very old common law principle that “justice should not only be done it must seem to be done”.

Chief Justice’s Bench

It is also a common observation that when the CJI is a part of the bench, the rate of dissent has been very low. And no CJI has expressed dissent till now. In the first decade, the rate of dissent in benches with the CJI was 10.97%. This rate has come down to 1.72% during 1991-2000 and 2.70% in 2001-10. And no dissents were recorded from 2011 to 2014 in any of the benches with the CJI. The reasons for declining rate of dissent in the Supreme Court decision making when CJI is the part of the bench could be:

• Some of the chief justices were very much comfortable with disagreements. This might be the reason for highest dissent rate in 1951, 1952, and 1953. The present low rate of dissent suggests that presence of the CJI restricting directly or indirectly other judges from expressing their disagreement in the bench.
• It is also possible that the CJI has certain special administrative powers vested with him to constitute benches; he is in a position to influence the other judges not to disagree with his judgements. The CJI may also constitute benches with like-minded judges to avoid dissent.

Famous dissenting opinions

Dissenting opinions that are recognised by the legislature

The first case in this category was the New Maneck Spinning v Textile Labour (1961). The dissenting opinion of Justice Subba Rao in the case had laid the foundation of the Payment of Bonus Act, 1965. The second case was ADM Jabalpur v Shivakant Shukla(1976). In this case, Justice H R Khanna spoke out for freedom in dissenting from the Court’s decision upholding the right of Prime Minister Indira Gandhi’s Government to imprison political opponents at will and without court hearings.

Dissenting Opinions Recognised by Subsequent Benches of the Supreme Court

The dissenting opinion of Justice Fazl Ali in A K Gopalan v State of Madras (1950) case was later recognised in Maneka Gandhi v Union of India which overruled the majority opinion in the previous case and held that any law which takes away a person’s personal liberty under Article 21 should satisfy the requirement of Article 19.  The other case was the dissenting opinion by Justice Subba Rao in RadheyshyamKhare v The State of Madhya Pradesh (1959) which laid down the premise of the law relating to principles of natural justice in the case of administrative bodies and it was subsequently recognised by the Supreme Court.

Dissenting Opinons Which Received Appreciation from the Legal Academia

The dissenting opinion of Justice Subba Rao in M S M Sharma v S K Sinhawherein he observed that privileges are still archaic, uncertain and repressive and therefore cannot be given overriding effect over fundamental rights.

Comment

The culture of dissent opinions among judges strengthens the legal system. The dissent opinion raised by judges in some case like Sajjan Singh v State of Rajasthan made the matter to be referred to a larger bench of 11 judges, that is, in Golak Nath v State of Punjab. The decision of the judges in this case forced the Parliament to amend the Constitution. The doctrine of “basic structure” mentioned by Justice Mudholkar in the Sajjan Singh case became formalised with KeshvanandBharati v State of Kerala. The present declining rate of dissent opinions by Supreme Court judges is a matter of concern.