Nature of dissent in the Indian judiciary

Syllabus:

GS 2: Judiciary

Why in the News?

In recent times, dissent by judges have gained attention in India and the United States for protecting constitutional principles, demonstrating their role in the defense of democratic values, intellectual debates and interpretations of the law.

Nature of dissent in the Indian judiciary

Introduction

  • Dissent is keystone of democracy, which fosters diversity of opinion and strong decision-making.
  • Dissent in the constitutional courts enhances judicial independence and strengthens legal knowledge.
  • While the Supreme Court in U.S. often expresses political views, dissent in the Supreme Court of India incorporates political, social and ideological dimensions, reflects a broader range of debates, and contributes significantly to evolution of constitutional laws.

Dissent in U.S. Supreme Court (SCOTUS)

Political Influence

  • Judicial dissent in the US is often influenced by the political beliefs of elected judges.
  • SCOTUS justices are appointed by the president and confirmed by Congress, giving the justices powers in line with the political views of the parties that appoint them.

Justice Breyer’s example

  • Justice Stephen Breyer, the Democratic nominee, consistently sided with liberal causes.
  • Glossip v. United States The dissent in Gross (2015) argued that the death penalty violates the Eighth Amendment’s prohibition on cruel and unusual punishment.

Judge Alito’s example

  • In contrast, Republican nominee Justice Samuel Alito was more conservative.
  • His objection in Obergefell v. Hodges (2015) argued that the Constitution does not give same-sex couples the right to marry, drawing attention to its conservative stance on social issues

Dissent in Supreme Court of India (SC)

  • Judicial Dissent in India is highly diverse, involving political, social and ideological debates.
  • Unlike in the US, political ideology in the Indian judiciary is free of dissent, and judges tend to focus on deep legal reasoning.

Social and intellectual dissent

  • Judges in India dissent on legal interpretations, social justice considerations and their intellectual approaches to constitutional matters.
  • For example, the disagreement in the case of Kesavananda Bharati (1973) was due to a dispute over the fundamental procedural principle, which is an important legal interpretation in Indian constitutional order.

Political dissent in Indian Judiciary

Collegium system

  • Unlike in the United States, judges in India are not appointed by the ruling political party.
  • Instead, they are appointed through a collegial system of senior judges, which provides them with independence from political influence.

No political bias

  • The decisions of the Indian judiciary are inconsistent with the position of the ruling party, making their decisions less political.

D. M. Jabalpur Case (1976)

  • During the state of national emergency under Article 359, four of the six judges of the Supreme Court ruled that fundamental rights including Article 21 (right to life and liberty) would remain suspended, and it was a majority decision in favor of the prevailing political need of the day.

Justice H R Khanna dissenting

  • Justice HR Khanna went on to say that by suspending Article 21, individuals would be deprived of any legal protection against loss of life and liberty.
  • Despite political pressure in a state of emergency, the dissent endorsed by Justice HR Khanna shows the importance of protecting fundamental rights.
  • Impact: His dissent later influenced a constitutional amendment to Article 359, making his argument part of the law.

P.V. Narasimha Rao Case (1998)

  • The question at issue was whether bribery for constitutional votes was protected under Parliamentary privilege.
  • Majority judges favored they are covered under the privilege and provide immunity from litigation, reflecting a favorable political climate for Congress.

Justices Agarwal and Anand dissent

  • The dissenting justices argued against such protection and privileges. Over time, their ideas became important.

Later development

  • In the case of Sita Soren v. Govt. Union of India (2023), the Supreme Court reversed the earlier majority decision and adopted a dissenting view, curtailing the scope of Parliamentary privilege in corruption cases.

Social dissent in Indian Judiciary

  • Social dissent in judicial decisions result from different interpretations of the social impact or significance of a legal issue.
  • Judges can have conflicting views on how the law interacts with social practices and constitutional principles.

Shaira Bano Episode (2017)

  • Supreme Court rejected triple talaq on the grounds that it violated the right to life and equality of Muslim women.
  • Judge J. W. McCarthy. Khehar and Abdul Nazir and the opinion that:
    • Triple talaq was an integral part of Sunni personal law.
    • Its constitutional determination was not limited to the courts because individual laws fall under the jurisdiction of the legislature.
    • Religious social change should be preceded by legal action rather than judicial intervention.

Aishat Shifa (2022)

  • Case questioned whether Muslim girls could wear the hijab in schools despite state’s uniform dress court.
  • Justice Hemant Gupta upheld the state’s ban on secularism, saying religion should remain a private matter, especially in public institutions like state-run schools.
  • Justice Dhulia, however, emphasized values ​​such as diversity, pluralism and tolerance as central to the Constitution. She believed that such values ​​should embrace religious symbols such as the hijab.

Intellectual dissent in Indian Judiciary

  • Ideological disagreements arise from differences in the interpretation of statutory or constitutional provisions. Such disagreements focus only on legal rather than socio-political debates.

Lalata Prasad Vaish Case (2024)

  • Supreme Court examined whether states have the statutory power to levy tax on ‘industrial liquor’ or whether this power is exclusive to the Centre.
  • Eight judges concluded that the expression ‘intoxicating liquor’ under Schedule 2 to Entry 8 of the Seventh Schedule of the Constitution was broad enough to include and meant liquor for human consumption and industrial liquor that states could tax industrial alcohol under these terms.

Justice B.V. Nagarathan’s misconception

  • Justice Nagarthan agreed with the view that:
  • Industrial brewing is used for manufacturing and is different from brewing for humans.
  • The term ‘alcohol’ should only apply to beverages for human consumption, not industrial alcohol.
  • Thus, states do not have the authority to tax industrial alcohol.

Conclusion

Dissent in constitutional courts strengthens democracy by generating ideas. In India, judicial dissent—whether political, social, or philosophical—protects justice, promotes legal progress, and upholds constitutional norms against majority opinion.

Source: The Hindu

Mains Practice Question:

Discuss the role of judicial dissent in upholding constitutional values ​​in India and compare it with the practice of dissent in US.