Dissent in constitutional courts is crucial for democracy, with differences in motivations and implications between India's Supreme Court and the U.S. Supreme Court.
In India, judicial dissents can arise from political, social, or purely intellectual disagreements, unlike the more politically inclined dissents in the U.S.
Notable Indian Supreme Court dissents have challenged political norms, reflected varying social understandings, and offered robust intellectual critiques on constitutional interpretations.
Introduction to Dissent in Democracies
Dissent plays a crucial role in a true democracy and is relevant to citizens, parliamentarians, and judges of constitutional courts. Both India and the U.S. have robust judicial systems where dissenting opinions are significant, albeit for different reasons.
U.S. Judicial Dissent
In the U.S. Supreme Court (SCOTUS), dissents often align with the political leanings of the judges, who are presidential appointees confirmed by the Senate. Justice Stephen Breyer, appointed by Democrats, has dissented on issues like capital punishment, arguing it violates the Eighth Amendment. Conversely, Republican appointee Justice Samuel Alito has dissented in cases involving abortion and gay rights, arguing that such rights are not constitutionally protected.
Indian Judicial Dissent
Indian judicial dissents differ from the U.S. as judges are appointed through a collegium system, avoiding political influences. Indian dissents vary from political to social and intellectual disagreements.
Political Dissent
In ADM Jabalpur (1976), Justice H.R. Khanna dissented against the majority's politically aligned view that fundamental rights could be suspended during an emergency. His dissent eventually led to a constitutional amendment. Similarly, in the P.V. Narasimha Rao (1998) case, dissenting judges opposed the majority view favoring the ruling party, a stance later overruled in a 2023 case.
Social Dissent
Social dissent reflects different interpretations of legal issues. In Shayara Bano (2017), dissenting judges upheld the triple talaq as integral to Sunni law, opposing the majority's view. Another case, Aishat Shifa (2022), saw differing opinions on wearing hijabs in schools, stemming from varied understandings of secularism.
Intellectual Critique
Intellectual critique involves purely interpretative disputes. In Lalta Prasad Vaish (2024), Justice B.V. Nagarathna dissented on the interpretation of legislative texts regarding taxation of industrial alcohol, emphasizing its non-consumable nature.
Conclusion
Dissent, in its various forms, enriches democratic judicial processes, highlighting the differences and complexities within constitutional interpretations. Each form of dissent, whether political, social, or intellectual, showcases the nuances of judicial thought in democracies like India and the U.S.