'Discordant Notes- The Voice of Dissent in the Last Court of Resort' by Justice Rohinton Fali Nariman to be launched at event by The Pratibha Khaitan Foundation.
Panelists : Justice (Retd) BN Srikrishna, Senior Adv Darius Khambata, Bom HC judge, Justice Gautam Patel #BookLaunch
Panelists : Justice (Retd) BN Srikrishna, Senior Adv Darius Khambata, Bom HC judge, Justice Gautam Patel #BookLaunch
Justice Gautam Patel: Its a singular privilege and honour to be here today. Let us start with Justice Nariman himself
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Justice Nariman: I was incarcerated in the home for six weeks during the COVID pandemic and is written them. This book has two volumes. The first chapter deals with the need for dissent. It gives pros and cons for allowing and disallowing a dissent #booklaunch
Justice Nariman: Privy council advising the King used to give the advice in one voice. Thus dissent was not there till the late 1900's. Second is dissent and notable dissent which are notable right through world war I and II, Lord Atkin was there in World War I.
Justice Nariman: Then there are dissenting judgments which scandalises the court. Then there are dissenting judgments as instruments of change. Here there is Justice Fazl Ali. Almost two became laws by virtue of the first amendment.
Justice Nariman: Then we have famous dissents by Justice Sinha which later went on to become a law. Then there are great dissents which did not become the law. Here there is another dissent by Justice Sinha and Justice Bachawat in Golaknath case.
Justice Nariman: Justice Venkatachaliah's dissent in Antulay. Then comes the second volume where the four judges, Justices Fazl ALi, Vivian Bose and then the championing dissenter Justice Subbarao who had 53 dissents and then Justice Sarkar.
Justice Nariman: Justice Ashok Mathur's dissent in the Mirzapur case has a special footnote in the book.
Justice Nariman: Justice Syed Mahmood was made a judge at the age of 32 of Allahabad High Court. There is a special footnote regarding this.
Justice Gautam Patel: There hasn't been a work like this in India for a very long time possibly ever.
Justice Gautam Patel: There hasn't been a work like this in India for a very long time possibly ever.
Justice Gautam Patel: the fact that it has been put together in such a short time shows the monumental research that has gone into it. Here is a book on law in two volumes that is literally a joy to read.
Justice BN Srikrishna: It has been a pleasure to always sit with brother Rohinton.
Justice BN Srikrishna: Instead of having a concise majority, we all saw what happened in Ayodhya judgment, here what is an oath that a judge takes, he will swear by the Constitution and abide by it but does that mean saying yes to someone else's thinking.
Justice Srikrishna: I had guessed this book is coming, He had told me he is thinking to write such a book and asked to be on the platform whenever he releases it.
Justice Srikrishna: I have not read it yet but I am going to read the 1200 pages in it. Most books are like digest but saying what is right and what is wrong is something no one says.
Sr Adv Darius Khambata: It is amazing that a sitting Supreme Court judge inspite of the pressures of the profession managed to write this in 6 weeks, this book says how judges have to be independent and carry integrity with high intellectual brass.
Sr Adv Khambata: Rohinton has always etched his own path. He has personified what Justice Marshall said in 1803 in Marbury vs Madison case. It is needed that judges at times do not agree. The gem he gives us is Justice Vivian Bose's judgment in 1943.
Sr Adv Khambata: The classic judgment has to be Justice HR Khanna's judgment. Ability to stand up to his most powerful four colleagues in times of emergency and how New York Times ran an editorial how his statue should be erected, though that did not happen
Khambata: Justice Radhabinod Pal's dissent too finds a mention where he gave a dissent in the war crimes case.
Sr Adv Khambata: It is a remarkable book. The first chapter Rohinton said is very important. Today in our society dissent occupies a suspicious place that disturbs the beautiful picture, dissent by a judge is an alternate path. It all keeps the majority on their toes.
Sometimes great dissents are not always followed immediately. Now we have the Doctrine of Substantive unfairness which is used to strike down laws. this book is a good read even for non lawyers: Khambata
Justice Patel: The commentary of the book is interspersed with passages and it is not a distraction. Now the way the book is structured shows a symphonic coherence, each section is independent and well connected with the previous one.
Justice Srikrishna: Lord Atkin's was the lone dissenting judgment but he was vindicated when laws were passed to safeguard the fundamental rights of Britishers. it is ultimately the brave souls who will make a mark.
Sr Adv Darius Khambata: It is not only the majority to fine tune the judgment it is also for the citizenry and for the people, if they have confidence that there are opposing voices discussing an issue thread bare that gives confidence to the system
Justice Srikrishna: Dissent is more like the opposition in the parliament, can a parliament work without opposition voices? Such is the role of dissent in a judgment.
Justice Nariman: It is very important to sift material facts from the principles of law. It is important to understand what you are applying to a case first.
Khambata: judge bound by precedent can choose not to follow it. The law as we all know is as creative as any other. can you imagine art, science, literature stuck to parameter and rules set up.
Khambata: Its like coming to a same conclusion 10 years down the line. for development of law dissent needs to be encouraged
Justice Srikrishna: the reading of dissent always reverberate through the corridors of court. In a democracy you always try to find out to make people happy without violating the basic necessity of a human being.
Justice Srikrishna: For sabarimala as a religious man i would have said no don't allow but as a judge i have to wear the robe of constitutional propriety and give a ruling based on law.
Justice Gautam Patel: Why do you think the four judges in particular as mentioned above was selected by Justice Nariman in his book where he calls them as horsemen of apocalypse
Sr Adv Khambata: when you call someone calls dissenter you devalue the dissents and make it like they are more keen to dissent, it more means about intellectual courage and strength to dissent.
Khambata: I don't agree with Justice Fazl Ali's dissent but the beauty is in the debate.
Khambata: every prophet was a dissenter, what is religion also without dissent.
Justice Patel: if this discussion is anything to go by, go buy the book. each reading will bring its own reward
Justice Nariman: this Guru Gobind Singh approach, after me, not any other Guru
Justice Patel: if this discussion is anything to go by, go buy the book. each reading will bring its own reward
Justice Nariman: this Guru Gobind Singh approach, after me, not any other Guru
Question by @barandbench : Sir, How do you think dissent has undergone a change in the Supreme Court when compared to the days of Justice HR Khanna or Justice Sarkar? Is dissent a matter of courage too or its just about an alternate reading of law?
Justice Nariman responds: very interesting question answer is in Justice Khanna's day there were few cases there was slot of time and thought. today there is an avalanche dropping on us everyday. difficulty in becoming a sc judge today is nothing like earlier.
Justice Nariman: the fact that we can write dissent today is a great matter, you finish one judgment and there are three others it is not that people don't dissent, today it is a national court of appeal and not a constitutional court
Q: Can judges decide for themselves?
Justice Nariman: Buck has to stop somewhere and it stops at Supreme Court. Its not that we are infallible. To lay down constitutional law in continuum not dependent on the next election.
Justice Nariman: Buck has to stop somewhere and it stops at Supreme Court. Its not that we are infallible. To lay down constitutional law in continuum not dependent on the next election.
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