In India, dissent has grown to become an essential right guaranteed by the constitution, and the trend shows an increase in exercising this right, which is evident from the numerous protests held each year. Contrastingly, the apex court has seen a stark decline in dissenting opinions over the years. Such a decline raises questions on the credibility and capability of the Indian Judiciary.

Immediately after the establishment of the Supreme Court in 1951, there were many dissenting opinions, the highest amount occurring from 1960-70. However, in the third decade of its existence, there was a decline in dissenting opinions, especially in cases involving the disapproval of executive action and the curtailment of constitutional rights. This decade also saw the appointments of judges that were highly politicized during the rule of the Indira Gandhi government. Though the collegium system was established by an 11 judge bench, that too failed to create qualitative changes or increases in the velocity of the dissenting opinions. The fall in dissenting opinions is a sign of an unhealthy democracy as it hinders the evolution of legal jurisprudence; however, there is no yardstick by which to measure it.

The present-day constitutional system of the two-judge Supreme Court bench has reduced the possibility of dissent in its judgments. Moreover, seniority comes into play regardless of the bench’s strength. A surprising trend has also been observed over the past sixty-five years: the rate of dissent is very low when the Chief Justice of India (CJI) himself is a part of the bench, and no CJI has ever given a dissenting opinion. We shall now discuss in detail how the two-judge bench, seniority of the judge, and CJI himself being a part of the bench have affected the dissent in the judgments.

Formation of Two-Judge Bench

The Supreme Court does not sit en banc to decide the cases brought before it. Rather, it sits in varying benches, as decided by the CJI, according to the question of law that is before it. In a two-judge bench, dissent is technically impossible as the opinion of one judge cannot be taken as superior to the other. But a question arises here: what happens when the two judges disagree with one another? Such a disagreement between the two judges is considered a dissent, but such a dissent is not usually seen in the cases for the reason herein.

When the two judges disagree with each other, their case is referred to a larger bench by the CJI for reconsideration. Disagreement, as a result, causes a burden on the Judiciary as the matter has to be considered again, leading to a fair delay in the final disposal of the case. Looking at the huge number of pending cases in India before the Judiciary, dissent is therefore impractical.

Now, considering the fact that 80% of the cases are being decided by a two-judge bench, it is clear why the rate of dissent has declined. Also, in a two-judge bench, it is more likely that the opinion of the senior-most judge will prevail over the opinion of a junior judge.

Impact of Seniority On Dissent

No matter how many judges are present on a bench, the senior-most judge always has an upper hand in influencing the decision. From 1993 to 2016, sixty-six percent of dissenting opinions in constitutional bench cases came from the two junior-most judges. The rate of dissenting opinions increases with the decrease in the seniority of the judge on the bench.

When a junior judge forms an opinion and presents it before the bench, it is likely that his opinion may not be able to supersede the opinion of the senior judge on the bench. Therefore, the opinion of a senior-most judge prevails, and a junior judge in an apprehension that his opinion might not find the support from other judges of the bench conforms with the opinion of the senior judge. Such a situation lessens the chances of dissent in the judgment. Likewise, seniority also plays a role because the Chief Justice is able to influence the bench.

Influence by the Chief Justice

As stated above, the presence of the CJI on a bench has led to lesser dissent. However, the trend shows that the rate of dissent in the presence of the CJI has been declining since independence. In the initial two decades after independence, the rate of dissent where the CJI was on the bench was around ten percent. In the next two decades, the rate of dissent dropped further to about four percent. Between 2001-2010, the rate of dissent further dropped to under three percent. Moreover, not a single dissent was recorded between 2011 and 2014. The fall in the dissent rate gives rise to a sense of disquietude.

The reason behind such a drop is unclear and is mostly attributed to the degree of control exercised by the Chief Justice towards attaining unanimity. It suggests that the cases are referred to the judges that are more likely to achieve such an end. In achieving this, a Chief Justice uses his administrative power of forming a bench where the judges present are less likely to question his judgment or may constitute a bench of like-minded judges, and therefore, dissent loses its utility. The presence of the CJI also indirectly influences the opinion of other judges as they do not tend to disagree while serving on a bench on which the Chief Justice present.

What’s at Stake?

Though dissent does not play a role in deciding the case, it has a certain role to play. That is, it’s quite possible that a dissenting opinion may be able to evolve existing jurisprudence on a subject. Dissenting opinions show the judge’s individuality and his adherence to his views. A dissent, therefore, is a valuable tool that opens the door for the evolution of law. Many times, dissenting opinions have been adopted as a majority opinion in subsequent judgments; the most famous instance being the dissenting opinion of J. Fazl Ali in A.K. Gopalan v. State of Madras, which was later adopted in the case of Maneka Gandhi v. Union of India. The decision in the former case was overruled and dissent of Fazl Ali led to the adoption of a procedure that must be “just, fair and reasonable”.

While majority opinions lay the path for the foundation of law, dissenting opinions lay the road for its evolution. For our judicial system to flourish, differing opinions should continue to emerge that could pave the way for ever-evolving jurisprudence. A dissenting opinion puts forth the potential fallacies in the majority opinion and establishes the pressurizing argument of a devil’s advocate.

As stated above, majority judgments have been overruled by the courts after considering the dissenting opinions, their importance, therefore, can be conjectured in the words of Justice Scalia:

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.

Conclusion

It may be concluded that the major factor leading to a low rate of dissent is the formation of the two-judge bench. At the same time, seniority also comes into play regardless of the bench size by influencing the opinion of other junior judges. Seniority also paves the way for a Chief Justice to influence the decision of the bench using rank, seniority and his administrative power. There are many constraints before a judge to dissent, and it is pertinent to note that any individual judge does not control these factors. But such a practice of suppressing dissent undoubtedly hits at the integrity of the fair judicial decision making.

Ayush Verma is a second-year law student at Dr. Ram Manohar Lohiya National Law University in Lucknow, India.

Suggested Citation: Ayush Varma, Declining Dissent in the Indian Supreme Court, JURIST – Student Commentary, May 9, 2020, https://www.jurist.org/ayush-varma-dissent-supreme-court-india/.

This article was prepared for publication by Gabrielle Wast, Assistant Editor for JURIST Commentary. Please direct any questions or comments to her at commentary@jurist.org