Be it dissent or a dissenting opinion, it is written or expressed by judges on expressing their disagreement in a certain legal case where the majority opinion of court leads to the final judgment. Also, this opinion cannot be referred to as a Legal Decision but a minority Report.
An explicit disagreement by one or more judges with the decision of the majority on a case before them is called Dissenting Judgement.
Not only Dissent is used to express disagreement against the majority of opinion but to provoke, poke and scold or otherwise instruct and sometimes urge the majority to consider the dissenter’s point of view.
Despite all of these, attorneys and judges sometimes consult the dissenters to understand their analysis of the majority opinion that leads them to disburse their disagreement on the Final Judgment/ Majority Opinion. While these dissenting opinion cannot be regarded as a precedent in any proceeding and cannot be relied on as an authority in subsequent cases the Judges and attorneys sometimes cite a dissent if they convinced with the reasoning and conclusion explained by the dissenters and seek support for a change in the law.
Further, these dissenting statements are published at the same time when the concurring statements and majority opinions are delivered. While these dissenting statements can be cited as a form of Persuasive authority but can’t be used as a precedent nor a part of Case Laws. Also, the uses are of this dissenting opinion is limited to the cases when the Court’s Holdings or the results to be derived from a case of law should be limited or overturned.
Reason for Dissenting a Judgment
Expressing dissent is prominently showing the right of Freedom of Speech is being enjoyed by the citizen of India provided by the Govt. of India. As India is a Democratic Country, Dissenting can’t be treated as prohibited as in other countries.
A judge disburses his disagreement on a concurring opinion when he believes that the judgment of the Court would not be in the public interest or result in subverting the Constitution or in a huge violation of the fundamental rights of a group of people.
The dissent can be made for any number of reasons, such as:
• A different interpretation of the existing case law.
• The application of different principles.
• A different interpretation of the facts.
Importance of dissenting an Opinion/Judgment
The main reason that we have dissenting opinions just because the justices often disagree with each other or the other judges on the panel on how a case should be decided. …more importantly, the reasoning in the dissent can, over time, later on, will suffice to convince a majority of the court. In that case, the original majority decision can be dismissed.
Dissenting judgments ensure that the Constitution of India is a living, breathing document.
We must celebrate the tradition of dissent that continues to flourish at the Supreme Court. Dissent is not only an “appeal to a future intelligence”, but a sign of what is possible: if one judge can be convinced today, then tomorrow, perhaps two, or three, or even four might be (Hindustan Times)
“A dissent in the 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” quoting the great American Judge, Charles Evan Hughes, Justice HR Khanna had written at the time of Indira Gandhi’s National Emergency in India in Habeas Corpus, while the rest of four judges held Right to privacy to stand suspended the only one Justice Khanna raise a dissenting voice against it and which cost him the rest of his judicial career as CJI.
Later on, after passing 41 long years, a nine-judge bench of the Supreme Court held that privacy is a fundamental right under the Indian Constitution, and in doing so, also held that Habeas Corpus had been wrongly decided and that Justice Khanna had been correct all the long way.
Again according to the celebrated jurist Benjamin Cardozo, on the case of dissenting judgment, he said “the dissenter speaks to the future, and his voice is pitched to a key that will carry through the years”
Facts associated with Dissenting Opinion
Apart from Justice Khanna’s dissent, there are three more great dissent judgments that have been cited by the then Supreme court justices on the same Habeas Corpus. In Kharak Singh vs the State of UP(1962) Chief Justice Subba Rao in his dissent statement being disagreed with his five colleagues said that ‘the Constitution guaranteed a fundamental right to privacy’ and ‘that police surveillance regulations were entirely unconstitutional.’ Another one is in the case of AK Gopalan vs State of Madras (1950), arguing to the majority judgment which stipulated to ‘no person shall be deprived of his life or personal liberty except according to the procedure established by law’ Justice Fazl Ali said In his dissenting judgment that the phrase “procedure established by law” required that deprivations of life or personal liberty must conform to standards that were themselves just, fair, and reasonable. Which gradually became law after two decades in the Bank Nationalisation Case.
Cases related to Dissenting Opinion
Justice Nariman and Justice Charndrachud who were a part of the Five judges constitution bench in the Sabarimala Case expressed their disagreement through a dissented judgment against the majority Verdict and dismissed the pleas filed for review of the Apex court’s earlier judgment allowing entry of women of all ages to the Sabarimala Temple.
When Justice F Nariman, addressing the solicitor regarding the decision taken on it he said: “ Please tell your Government to read the immediate last dissent judgment delivered in the Sabarimala temple case, which is extremely important inform your authority and the government to read it.”
While delivering his Dissent judgment on the case he had written it as well as on the behalf of Justice Chandrachud also, and the minority verdict by the Supreme court held was that ‘unarmed women’ into the Sabarimala temple as a ‘sad Spectacle’, and said the enforcement of its 2018 order is Non-negotiable and No person can flout it.
As per the September 2018 SC Judgment, the decision was “all pilgrims regardless of gender, including women in the menstruating age group, should be allowed entrance to Sabarimala. The Constitution Bench of the Supreme Court held that any exception placed on women because of biological differences violates the Constitution – that the ban violates the right to equality under Article 14, and freedom of religion under Article 25.”
The court also said that the Constitution places a ‘non-negotiable obligation’ on authorities to enforce the judgment as it was necessary to preserve rule of law and directed strict compliance with its September 2018 decision girls and women of all ages to enter the hill-top shrine in Kerala and ordered Kerala to follow the rule of law and grant pilgrims protection.
“The views of the authors are personal“
Frequently Asked Questions
What is concurrent Opinion?
A concurring opinion is a statement which is authored by one or more justices while getting agreed with the outcome decided by the majority simultaneously present other reasons than the reasons made the final judgment to support outcomes. In short, a dissenting part/concurring part of opinion agrees with one part of the decision but disagrees with another.
What is the importance of dissenting opinion and the Courts?
The importance and role of dissenting opinions in cases involving fundamental rights cannot be exaggerated. Such cases always have two faces and two possible interpretations – one in favor of the citizen and the other one is always in favor of the Executive. When lawyers from their respective sides of parties present their respective versions, the Court debates the two and holds in favor of one as opposed to the other. In such a scenario, a dissenting opinion symbolizes the point of view that could have been. It is akin to the view of the opposition in a democracy.
What is Majority Opinion?
The majority opinion expresses the view shared by more than half of the justices and explains the rationale supporting the Court’s decision. Which later on may turn into the Final Judgment.
What is Persuasive Authority?
Persuasive authority means with which the Law consults in deciding a case. It helps the judge in making the decision in the instant case. Persuasive precedents may come from a variety of sources such as lower courts, horizontal courts, foreign courts, statements made in dicta, treatises, or law reviews.