The Hidden Pulse Of Democracy
- IJLLR Journal
- May 17
- 2 min read
Paavni Gupta, National Law University, Jodhpur
Introduction
The right to dissent is the sine qua non of a true democracy. As much importance it holds for the citizenry of a nation, for the representatives of the people, it holds similar or possibly more importance for the custodians of a constitutional court. Judicial dissents that are not revived, often remain etched in memory more than the loudly pronounced verdicts.
Dissent undoubtedly, for the ones who choose it, must be a lonely enterprise, however, dissent provides hope. A hope of judicial independence, a reflection of the diversity of our society, that our institution values debate and discussion. Dissents emanating from the confines of a courtroom may not be binding but they exude immense soft power.
This article intends to explore how dissent energizes law and what role does judicial dissent play in producing equitable and fair decisions by a court of law in a liberal democracy. The article will base its analysis on landmark judgments which serve as examples to dissent inspiring law- in spirit or in letter.
Hon’ble Justice H.R. Khanna’s dissent in the case of ADM Jabalpur v. Shivkant Shukla in the year 1976, exists as the most landmark dissenting judgements in history. Justice Subba Rao’s dissent in Kharak Singh v. State of Uttar Pradesh, had to wait fifty- five years to be revived and, finally in 2018, in K.S. Puttaswamy v. Union of India, his view was brought to life and the right to privacy was recognized as a fundamental right under the Indian Constitution.
Justice H.R. Khanna in his admirable verdict in ADM Jabalpur v. Shivkant Shukla, opined that, “A dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.” Justice Khanna’s dissent relating to habeas corpus was later acknowledged as a fundamental rule of law governing our nation, after forty five long years, in the case of Justice K.S. Puttaswamy v. Union of India, which set aside the majority opinion of the infamous ADM Jabalpur judgement.
