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Sep 5, 2020 89 tweets 27 min read

A Webinar organized by GNLU, Gandhinagar and CAN Foundation on "Dissents that made a difference: India & Abroad" to begin shortly.

Supreme Court Judge, Justice Sanjay Kishan Kaul to deliver the Keynote Address

Senior Advocate Dhruv Mehta will be a co-panelist. Image
The session will be moderated by Supreme Court Advocates Anupama Dhruve and Kanu Agrawal.

@CANFoundation19 #Dissent
Session begins.

Prasanth VG from J Sagar and Associates introduces the panelists and Moderators.

@CANFoundation19 #Dissent
Prof (Dr) S Shanthakumar, Director, GNLU, Gandhinagar delivers the Welcome address.

@CANFoundation19 #Dissent
S Shanthakumar: We all know Justice Kaul is known as the guardian of Free Speech.

Prof Shanthakumar quotes Justice Kaul on Freedom of Speech:,

"Pluralism is the soul of democracy, there should be freedom for the thought we hate. Freedom of Speech has no meaning if there is no freedom after speech."

Prof Shanthakumar: I'm reminded of Justice Hidayatullah who has very rightly observed that dissent becomes a duty when silence amounts to crime.

@CANFoundation19 #Dissent Image
Justice Kaul now begins his keynote address.

Justice Kaul: In India dissent has been a part and parcel of our Constitution ethos and foundational values laid down by our freedom struggle.

@CANFoundation19 #Dissent
Justice Kaul: Dissent is also a vital feature of our justice delivery system. Collaborative and collective decision making is often considered a hallmark of any judicial institution...

@CANFoundation19 #Dissent
Justice Kaul:... but never at the cost of discouragement of individual voices that seek to stary from that collective thought process through the application of intellectual rigour and critical thinking.

@CANFoundation19 #Dissent
Justice Kaul: Dissenting opinion is indicative of what could have been.

@CANFoundation19 #dissent Image
Justice Kaul: I have always held a view that a judgment is an expression of opinion. An opinion may be good law today, may be good law tomorrow or may have been a good law yesterday.

Whether its emanates from High Court or the Highest Court does not make the difference.
Justice Kaul: The institution is such that it seeks to review its own judgments... it is a very important part of the legal system and process.

Justice Kaul: We are fortunate to have a rich history of dissent, both in India and abroad.

#Dissent @CANFoundation19
Justice Kaul: We begin with liberty. This right has become the most regarded right and the instances when the right to liberty was taken away have come fraught with challenges.

#Dissent @CANFoundation19
Justice Kaul refers to the judgment from the UK in the 1941 case Liversidge v Anderson which dealt with the relationship between the Executive and the Judiciary especially during the war and emergency.

#Dissent #Liberty @CANFoundation19
Justice Kaul refers to Lord Atkin's famous dissent in the judgment who had remarked "I protest even if I do it alone"

#Dissent @CANFoundation19
Justice Kaul: Lord Atkin had opined that the majority, on the question of liberty, was being more executive minded than the executive... an expression often used in the public domain today.

#dissent @CANFoundation19
Justice Kaul: The impassioned dissent is an instance where the adage of agreeing to disagree faltered and Lord Atkin eventually faced the wrath of the Bench

@CANFoundation19 #dissent
Justice Kaul: We find a similar instance in the ADM Jabalpur case where the Indian Judiciary borrowed a leaf from the Liversidge's book.

The Habeas Corpus case dealt with a challenge concerned non-speaking detention orders issued under the MISA during #Emergency.

Justice Kaul: Majority upheld the State's power to detain people. Justice HR Khanna finding himself at crossroads, chose to stand alone in dissent and at eventually at a personal cost of a position of the CJI.

Justice Kaul: His dissent revolved around the fulcrum of A21 and finding that the right conferred was inherent to all of us and could not be suspended due to emergency.

Such suspension would leave a person remedyless against the deprivation of their right to liberty.
Justice Kaul: Before parting, Justice Khanna laid down the power of dissent by remarking that even though his view was a variance with the majority the same had not stood in the way of expressing his view.
Justice Kaul: ...Unanimity is desirable, but unanimity which is formal and recorded at the expense of strong conflicting views is not desirable in the Court of last resort.

Justice Kaul: Justice Bhagwati in 2011 in an interview agreed that the majority judgment which he was part of was incorrect.

Justice Kaul: More recent moment of redemption, a six Judge of the Supreme Court categorically overruled the ADM Jabalpur case in the 2017 judgment in KS Puttaswamy judgment... and the darkest chapter in history was buried.


[Also Read]…
Justice Kaul: The power given to the Judges to express their judicial belief stems from the Freedom of Speech and Expression

Justice Kaul refers to the 1919 case from the US in the case Abrams vs United States where the Freedom of Speech was a question under consideration vis-a-vis Sedition Act.

Justice Kaul refers to the famous dissent in this case by Justice Oliver Wendell Holmes and his principle of "marketplace of ideas".

Justice Kaul: A similar question of free Speech pitted against National Security and public order came up before the Supreme Court.

In Romesh Thapar vs State of Madras, the constitutionality of Section 9(1)(a) of Madras Maintenance of Public Order Act was challenged.
Justice Kaul: The SC was tasked with clarifying the expressions "public order", "public safety" and "undermine the security of"

Justice Kaul: The majority opinion held that the use of the broader term "public order" under the Section was unconstitutional since it limits A19(2)

#Dissent Image
Justice Kaul: Justice Fazal Ali alone held that public order, public safety essentially amounted to same thing
Justice AKul: We have had dissents that in today's social thinking, some people may agree with earlier minority view or majority view. The significant thing is that there was a thought process that was developed which was a tool for further development
Justice Kaul: The minority opinion in Abrams case in US became the majority opinion in Romesh Thapar.

Justice Kaul: Some thoughts are viewed as untenable at a particular time but later the significance of such opinions is seen.

Justice Kaul now cites the judgment in the case Kharak Singh vs the State of Uttar Pradesh where questions pertaining to right to privacy was one of the questions that was also raised.

Justice Kaul says that while the majority had held that right to privacy is not a fundamental right, Justice Subba Rao dissented holding that even though the Constitution did not expressly declare privacy as a fundamental right, it was a part of A.21

Justice Kaul says that it was this very opinion of Justice Subba Rao which was laid down in the 9-Judge judgment in the case KS Puttaswamy case where right to privacy was held to be a fundamental right under Article 21.

[Also Read]…
Justice Kaul: Justice Subba Rao's dissent was one of the grounds on which a Constitution Bench read down Section 377 of the IPC in the NAvtej Singh Johar vs UOI case.

[Also Read]…
Justice Kaul: It was in the US case in Obergefell v. Hodges where same-sex marriage was permitted in all 50 States of the US, but the Bench was split.

The minority had held that Constitution did not allow Judges to decide the meaning of "marriage" which was in legislative domain
Justice Kaul: In India, we have been witnessing gradual and progressive social changes through the development of law and policy.

Justice Kaul refers to the recent order by the Orissa HC to make a case.

[Read the story here]…
Justice Kaul refers to a judgment from Kenya where the question pertained to Muslim students being allowed to wear a Hijab where the dissenting opinion held that there was a need for differential treatment owing to the difference of faith held by the people.
Justice Kaul refers to the 2015 case from Indian Supreme Court in the case of NJAC where the NJAC was struck down by a 4:1 majority.

#Dissent #NJAC @CANFoundation19
Justice Kaul: Justice Chelameswar was the lone dissenter in the case. The majority opinion penned by then CJI Justice Khehar shows the importance of diversity in opinion

[Also Read]…
Justice Kaul: Even in the Sabarimala case, the dissent came from a woman Judge, in a case which was propagated as a women rights' case. This is to highlight the importance of dissent, not the source of where it is coming from.

[Also Read]…
After Justice Kaul, Senior Counsel Dhruv Mehta delivers an address on dissent.

Mehta quoting Justice Khanna "dissent in the Court of last resort is an appeal to the brooding spirit of the law"

#Dissent @CANFoundation19
Mehta recalls the AK Gopalan case where questions of Article 21 and the law of preventive detention were raised before the Supreme Court.
Mehta refers to Justice Fazal Ali's dissent where "procedure established by law" was to include four elements
- notice to the person
- opportunity
- impartial tribunal
- orderly course of procedure Image
Mehta says that the majority held that A.22 was a code in itself while the minority opinion said that the scheme of the chapter dealing with Fundamental Rights does not contemplate that each Article is independent of each other.

Mehta: Law in Gopalan was revisited in RC Cooper case also called the Bank Nationalising case.

Justice AN Ray alone dissented in this 10:1 majority

Mehta: It was held that the law would have to be required to be tested in relation to Article 19. Though this case dealt with property rights.

It was in Maneka Gandhi case of 1978 when Gopalan case was laid to rest.

#dissent @CANFoundation19
Mehta: Justice Bhagwati said that procedure under Article 21 must satisfy the test of being fair, reasonable and just and A.14 and A.21 must be read together.

Every executive action & legislative measure must be fair, reasonable and just and this was same as dissent in Gopalan.
Mehta: Another great dissenter was Justice Vivian Bose.

Mehta refers to the cases State of WB vs Anwar Ali Sarkar and Kathirani rawat case.

Mehta: In 1978 the Court dealt with the Special Courts Bill and applied the test of classification. The Bill passed the muster, the Court opined that the provisions of the Bill were unfair and unjust, a view propounded by Justice Vivian Bose in Anwar Ali Sarkar case
Mehta refers to the decision of the Shayra Bano case, aka the Triple Talaq, the Court struck down the practice as being manifestly arbitrary, unfair and unjust - the same test that was laid down by Justice Bise in the Anwar Ali Sarkar case.
Mehta: Justice Subba Rao is perhaps the greatest dissenter in Indian judicial history. In his judicial career, he penned 116 dissenting opinions

Mehta also cites the dissenting opinion of Justice Rao in the Kharak Singh case which was also cited by Justice Kaul in his keynote address.

Mehta says that in his autobiography "Before memory fades", Mr. Fali Natriman says that "the architect of the judgment in Golaknath was CJI Subba Rao wherein it was held that all the FRs were beyond the reach of Parliament's powers to amend Article 368."
Mehta: As stated by Nariman, if there was no Golaknath, there would have been no Kesavananda Bharati and no theory of Basic Structure as propounded by the majority in that monumental judgment.

Mehta: Justice AN Ray was the lone dissenter in the RC Cooper case and he superseded three Judges senior to him to become the CJI.

Mehta cites the famous case from the US - Plessy vs Ferguson where the constitutionality of racial segregation was upheld on the principle of "separate but equal".

Mehta: The dissenting Judge in the judgment opined that such segregation was arbitrary. The dissenting opinion held that all citizens were equal and the law was bad for providing for racial segregation and it was contrary to civil liberties.
Mehta: Almost 60 years later, this judgment was looked at again and the Supreme Court now aligned with the dissenting judgment in Plessy vs Ferguson.

Mehta refers to the famous #Sabarimala case from India and cites Justice Indu Malhotra's dissent where she held that what amounts to essential religious practice is not for Courts to decide but has to be decided by the tenets of that religion.

Mehta: Justice Malhotra also held that the devotees of Lord Ayyapa also constituted religious denomination and entitled to protection under Article 26.

Subsequent to the judgment there was a public outcry and later bigger questions were referred to a larger Bench.

Mehta: Even in the review there was dissent where Justices Rohinton Nariman and DY Chandrachud dissented and then CJI Ranjan Gogoi with Justices AM Kahnwilkar and Indu Malhotra were in the majority and referred larger questions to a larger Bench.

Mehta concludes.
Moderator, Advocate Kanu Agrawal asks Justice Kaul:

The rate of dissent in the Supreme Court has declined from 10% in 50s to now a 3%. Dissents are negligible with CJI on Bench. Is this a trend or more perceptive of modern SC with more Division Benches hearing cases?
Justice Kaul: Over last 70 years, lot of law has evolved. We also carry a history of the evolutionary process that has gone through. Dissent need not necessarily be circumscribed to the subject
Justice Kaul: SC was originally supposed to be a Constitutional Court but now because of the large volume of cases, there are Benches of 2 and 3.

Dissent should not be for the sake of it.
Justice Kaul: Dissents earlier were arising from laws developing in other countries. Position in India, with evolution of law, certainty of law has prevailed.
Justice Kaul: It is an evolving process and statistics would not be a fair way to judge it.
Moderator Anupama Dhurve asks Dhruv Mehta:

"It is oft espoused that one must be vary of unloving critic and uncritical lovers", in light of this what importance do these instances of dissent hold for the society at large in Indian context?
Mehta: FoE is of utmost importance. Without freedom to speak and exchange ideas and criticize judgments there would be no democracy.

Criticism of judgments is a welcome phenomenon.
Mehta: Criticism is not always negative, sometimes it is constructive and this is how law and society evolve.
Agrawal to Justice Kaul: What advice would you give to young lawyers and looking to make a career in Delhi.

Justice Kaul: I got the opportunity to come to this side (on the Bench) at an early age.
Justice Kaul says he worked at a law firm but quickly ventured in litigation because he wanted to be an arguing Counsel.
Dhurve to Mehta: Can there be a scenario where fringe opinion under the garb of protected dissent is able to foment trouble by practically debilitating the mainstream understanding?
Mehta: Do not agree that dissent of a Judge can be said to be a fringe view. The idea of dissent is only that the dissenting Judge believes that the majority has not enunciated the law.

Mehta: View on the interpretation of the Constitution or the law can't be said to be a fringe view. It may be right or wrong or guidance for the future. I don't agree it can be a fringe view that can foment trouble.
Justice Kaul gives his parting thoughts:

"Every society must have dissents, different POVs. Where there has been a debasement is the manner of dissent taking place. It is true of every field which is occurring."
Justice Kaul: We somehow have lost this respect for each other's opinion I think. There is no opinion which is wrong or right. The Courts today are faced with the situation where a lot of matters which were never envisaged have come under PIL.
Justice Kaul: We are faced with what are called political matters which lead to a shrill discourse.

Segregation of power requires the Judiciary to perform a role and executive to perform its role.
Justice Kaul: We have adopted a Constitution where we have an elected government in power.

Courts cannot be unelected governments and yet they provide checks and balances. Court is performing a delicate role and balance. It does face criticism on this aspect
Justice Kaul: There are criticisms on how far can the Court go and there are criticisms that Courts are not going far enough.

The segregation concept must be kept in mind.
Justice Kaul: If there are views not in sync with the dispensation in power there is a time which comes when that dispensation comes to power and expresses its view.

While judging the role of the Judiciary, it must be treated as a constructive approach.
Justice Kaul: There are limitations, the judiciary is not assigned the role of running the system but putting the checks and balances in the system.
Justice Kaul: In this, we have a place for dissent and it may be for political system in Parliament, in the streets and in Judiciary by expressing a different view from majority's.

Dissent will continue to have importance in every field including the Judiciary.
Prasanth VG proposes a vote of thanks, says this has been one of the most enriching sessions especially on a day like Teacher's Day.

Session concludes.

• • •

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