Supreme Court judge, Justice Sanjay Kishan Kaul to deliver keynote address at a webinar on the topic "Dissents that made a difference: India & Abroad" organised by CAN Foundation.
Diversity exists across religions, cultures, communities and in a democrtic society dissents are the manifestation of such diveristy.
In India, dissents have been part and parcel of our Constitutional ethos.
In India, dissents have been part and parcel of our Constitutional ethos.
Dissent is also a vital feature of our justice delivery system. Collaboration, collective decison making are often considered the hallmark of any judicial institution but never at the cost of disparagement of individual voices that seek to stray from collective thought process
We are fortunate to have a rich history of dissents both in India and abroad, says Sanjay Kishan Kaul J.
Justice Kaul now tracing some of the landmark judgment
"Let us being with liberty because it is the lynchpin of every democratic society", says Kaul J.
"Let us being with liberty because it is the lynchpin of every democratic society", says Kaul J.
"Liberty is the most regrard of the rights", says Kaul J.
He speaks about Lord Atkin's dissent in Liversidge v. Anderson
He speaks about Lord Atkin's dissent in Liversidge v. Anderson
The British govt had in 1939 enacted Defence General Regulations. it permitted state secretary to arrest people on the "reasonable cause" that they had "hostile associations.
The majority held that courts cannot inquire into the ground of beliefs which had led to such arrest.
Lord Atkin opined that "reasonable cause to believe" means secretary's actions must be evaluated by using objective and reasonable standards to remove any unconditional power
Lord Atkin opined that "reasonable cause to believe" means secretary's actions must be evaluated by using objective and reasonable standards to remove any unconditional power
From Liversidge v. Anderson, justice Kaul now moves to justice HR Khanna's dissent in ADM Jabalpur v. Shiv Kant Shukla.
"Justice Khanna's dissent revolved around the fulcrum of Article 21 in finding that right to life conferred by it is inherent to all of us and cannot be suspended by merely a declaration of emergency," Justice Kaul.
Later Justice Bhagwati agreed that the majority judgment of which he was a part was incorrect.
In the most recent case of KS Puttaswamy case (Privacy judgment), the ADM Jabalpur judgment was categorically overruled.
In the most recent case of KS Puttaswamy case (Privacy judgment), the ADM Jabalpur judgment was categorically overruled.
Globalisation has brought in new challenges to world's judiciary with refugee crisis and cross border crisis meeting at the confluence of these challenges.
Justice Kaul referring to dissents of Justice Fazl Ali in romesh Thapar and Justice Subba Rao in Kharak Singh.
In Romesh Thapar the question of free speech v. national security came into debate. Majority held there is distinction between "distrubing public order" and "undermining security of state". Justice Fazal Ali alone dissented and held that there is no distinction between the two.
Supreme Court judge Justice Sanjay Kishan Kaul says "courts cannot be unelected governments. They provide check and balance. They are in herently minoritarianism because the majority view is reflected by government in power."
So this is a delicate balance which courts have to perform today. It faces criticism today on how far it should go. Some say court goes too far while others say it is not going far enough.
Judiciary has not been assigned the role of running the system but a role to put check and balance on the system.
