The (right) statement of John Stuart Mill tells us that even if a person finds himself alone in expressing his opinion, he should be free to express it, as it is the hallmark of the inquisitive spirit of mankind.
If the opinion is true, then by suppressing it humanity is deprived of the truth and will not progress. If the opinion is false then humanity again loses, because while the opinion will be shown to be false its expression is useful, for it forces us to restate the reasons for our beliefs. Mill brings to light a remarkable phenomenon, though uncommon called ‘dissent.’
The history of science and the history of spirituality are undeniably a series of ruptures or dissents with the situation. However, the rupture is hardly historicized as it is treated as if it were part of a continuity constituting a historical whole. The truth of the moment of Albert Einstein was the dissent with the then existing notions of time, space and energy. The dissent of E = mc2 soon became the consent.
Copernicus dissented to challenge the long-held notion that the Earth was the centre of the Solar system. This reluctant radical dissenter set in motion a chain of events that eventually produced the greatest revolution in thinking that Western civilization has seen. His ideas were realized only after 100 years when Kepler, Galileo, and Newton fabricated the heliocentric Universe of Copernicus.
Similarly, spiritual truth moments also later became consents losing their rigour. However they are inbuilt with truth potential to dissent by the merit of their pure multiplicity. In ancient Greece the famous philosopher Socrates dissented on the existence of the Gods of Greek mythology, and this was one of the charges that led to his execution.
Buddhism was a dissent against the engrained caste system, rituals, spirits or the devil and to elevate human sufferings. Jainism, which is famous for its promotion of non-violence, is often paired with Buddhism as one of the two greatest dissenting religions which originated on Indian soil. Christianity was embraced as the religion of dissent against the expanding Roman Empire. In the pronounced instability, Islam emerged as the focus of global dissent, ful?lling a role vacated by earlier ideologies of the left.
The dissent in multi-member benches of appellate courts also evolved for finding truth. A dissent is not an attempt to win over one&’s colleagues. It deals with a die already cast, an issue already determined. The most that the dissenter can hope to do, so far as the present is concerned, is to persuade contemporaries of the court that his associates were mistaken, to mobilize public opinion against them; a dubious satisfaction since the court is not supposed, in any case, to be responsive to popular pressure.
Dissent as it is claimed is a plea to posterity and enjoys a truly distinctive, even paradoxical, institutional status. Justice Douglas of the Supreme Court of the United States of America once observed that “right to dissent is the only thing that makes life tolerable for a judge of an appellate court.” Although this was a light-hearted remark, there is substantive value in a judge&’s dissent as elucidated by Justice William Brennan: “dissents contribute to the integrity of the [judicial] process not only by directing attention to perceived difficulties with the majority&’s opinion but… also by contributing to the marketplace of competing ideas.”
If a judge publicly voices his/her disagreement with the majority, this holds the majority accountable for the legal quality of their opinions. Justice Chelameswar&’s glimmering dissent in the critical NJAC judgement and now his disagreement with the collegiums system, and his firmness on recording of the minutes have once again driven the appointment process controversy in public.
While the significance of the dissenting opinion has received various forms of implicit salutation over the years, particularly in the United States, where it has long held a peculiar romantic fascination, serious regard had not been given until recently to this important aspect of decision making.
Rosco Pound proposed four distinct types of dissent: first; the reargued action, which defends the old order in times of change. The minority judgment in the famous Keshvanand Bharati v. State of Kerala [AIR 1973 SC 1461] fortified the traditional understanding that Parliament is supreme and can amend any part of the Constitution in exercise of its constituent power under Article 368.
Similarly, Justice P. S. Kailasam&’s dissenting opinion in Maneka Gandhi v. Union of India [AIR 1978 SC 597] can be cited in this category where the learned judge was not able to comprehend the creative and liberal interpretation of Article 14, 19 and 21 offered by Justice P.N. Bhagwati.
Second is the reconnaissance dissent, in which the author looks forward with the hope that the majority opinion will be changed to reflect new conditions, for instance Justice Hidaytullah&’s dissenting opinion in the Naresh Mirajkar Case which argued that judicial wing of the state is not completely immune from violation of fundamental rights. The Supreme Court of United States way back declared that judiciary is also subject to the due process clause of the Constitution. Justice S. B. Sinha&’s dissenting opinion in Zee Telefilm Case [AIR 2005 SC 2267] was also of this nature where his lordship vehemently argued for the expansive interpretation of Article 12 of the Constitution keeping in mind the changing conditions.
Third; the exploratory dissent in which existing law is interpreted as not reflective of altered circumstances. Justice Bhagwati&’s dissenting opinion in Bachan Singh v. State of Punjab [AIR 1980 SC 898] reasoned that Section 302 of Indian Penal Code (IPC) does not comprehend the test of article 14, 19 and 21 of the Constitution of India and is hence unconstitutional.
Fourth is the cautious dissent which cautions against excessive zeal in adapting the law to changing times. Justice Chelameshwar&’s dissent in NJAC case [Supreme Court Advocates- on-Records Association v. Union of India, Writ Petition (Civil) No. 13 of 2015] was quite critical at a time when judiciary was trying to assume unqualified power for itself in matters of appointment and transfer of judges.
While the majority (4-1) struck down the proposed National Judicial Appointment Commission, Justice Chelameshwar admonished the majority&’s verdict as repugnant to the spirit of the Constitution. Criticizing the functioning of the present collegium system, he said, it was absolutely impervious and inaccessible both to public and history, barring occasional leaks. "Such a state of affairs does not either enhance the credibility of the institution or good for the people of this country." …. He added: "Absolute independence of any one of the three branches is inconsistent with core democratic values and the scheme of our constitution. This court by an interpretative process of the constitution… disturbed such balance. The amendment only seeks to restore such balance and therefore cannot be said to be destructive of the basic structure of the constitution."
The fate of a dissent though lies in the hands of the history. When history demonstrates that one of the court&’s decisions has been a truly horrendous mistake, it is comforting . . . to look back and realize that at least some of the Justices saw the danger clearly and gave voice, often eloquent voice, to their concern.
Justice Chelameshwar&’s disagreement shall also be tested on the benchmarks of time, veracity and his political neutrality because the ultimate safeguard for democracy is the public conscience.
The Constitution does help; judicial decisions do help, but basically and truly it is vigorous public opinion that safeguards democracy and enables the country to adhere to the democratic way of life. If the public conscience is shrunken and the intellectuals become inarticulate, then a stage is set for letting loose forces that may pose a danger to democracy.
It would now be inescapable for the Chief Justice of India to unravel the crisis by addressing genuinely contested issues of transparency and accountability in the collegiums. Otherwise the conscience of people is bound to be dismayed.
The writer is Associate Professor of Law at National Law University Odisha and currently on deputation as Deputy Registrar, Supreme Court of India.