Dissenting Opinions of Judges in the Supreme Court

Empirical works on the dissenting
opinions of judges in the Supreme
Court are fairly limited. This may
be attributed to the uncertainty of methodology
in collecting data and producing
the most reliable results to understand
the pattern of judgment delivery
system in the Supreme Court. To overcome
this limitation, this article aims to
argue the case for an empirical study of
how judges exercise their legal acumen
to come to an independent conclusion
on disputes that affect the health of
I ndian democracy. How free and capable
is an individual judge in the bench to
express his/her democratic dissent? Is
the concurrence to “aristocratic consensuses”
of the bench habitual? What is
the level of dissent across the bench over
the last six decades in the Supreme
Court? Which justices dissent more frequently
than others? Is there any regular
pattern of voting when the Chief Justice
of India (CJI) is a part of the bench?
What is the propensity of the judicial
dissent which got recognition and contributed
meaningfully to the development
of law? To substantially explore
these questions and empirically locate the
trends, we have collected and analysed
the Supreme Court’s judgments delivered
from 1950 to 2014 using the source of
All India Reporters (AIR) and Supreme
Court Cases (SCC).
 
Dissenting Opinions
 

The value of free speech and expression
gets strengthened when judges capably
use it to arrive at opinions that are
informed, effective and judicious. On
many occasions we see positive outcomes
of these dissenting opinions on
reforming the law and correcting errors
of the majority opinion in the judgments.
However, in the judgment delivery
system of India, our judges either
concur or supplement the majority
opinions in most cases. It does not mean that the free expression of dissent is
non-existent but it is infrequent and
declining at an unusual speed. It is
clear when we look at Figures 1 and 2
(p 14) which provide general and
decadal rate of dissent respectively in
the Supreme Court.
The phenomenal decline in expressing
dissenting opinions raises many questions
about the credibility of the institution.
Our observations of the trend are
as follows:
(1) Figures 1 and 2 suggest that in the
fi rst two decades the rate of dissent and
number of dissents were relatively good.
This was particularly so during 1961–70
which gave us the highest rate of dissent.
In this phase, we witnessed some great
dissenters like Justices A K Sarkar,
K Subba Rao, Hidayatullah, J C Shah,
J R Mudh olkar, Vivian Bose and J L Kapur,
to name a few.
(1.1) The sudden decline in the rate of
dissent in the third decade perhaps indicates
that the judiciary was overshadowed
either by external forces (the government)
or by internal forces (infl uence
of the CJI). This was the time when Indira
Gandhi came into power and the judicial
appointments were heavily politicised.
However, an 11-judge bench constituted
at the beginning of the penultimate
decade snatched the power of appointment
from the government and gave it
to a collegium system. But the collegium
system failed to bring qualitative changes
in the judgment delivery of the Supreme
Court despite getting autonomy in the
appointment of judges. On the one hand
it did not bring any improvement in the
quality of judgments and on the other, the
velocity of dissent instead of improving
seriously declined.
(1.2) The present trend of phenomenal
increase in the constitution of two-judge
benches by the Supreme Court is more
alarming because it further reduces the
possibility of dissent.
(1.3) Finally, the rising workload of
judges may also be responsible for the
decline of disagreement in the bench.
The strength of the Supreme Court is
nowhere proportional to the rising
workload of cases.1 Today the object of
the bench is to dispose of the matter and
not focus on the quality of judgment.
 

This approach is not justifi ed in the
light of a very old common law principle
that “justice should not only be
done it must seen to be done.” The economic
theory of judicial behaviour also
predicts that a decline in the judicial
workload would lower the opportunity
cost of dissenting and increase the
frequency of dissent.2
 

Chief Justice’s Bench
It is generally observed that the rate of
dissent has been very low when the CJI
himself is part of the bench over the
last 65 years (Figure 3). It is also surprising
that no CJI has expressed dissenting
opinions.
In the very fi rst decade, we found the
rate of dissent in benches with the CJI was10.97%. In the initial years of this decade,
the rate of dissent was 31.25% in 1950,
31.42% in 1951 and 17.24% in 1952. This
trend was almost similar in the second
decade where the rate of expressing dissent
in the CJI bench was found to be
10.60% (out of total 849 CJI benches, dissents
were recorded in 90).3 In 1961 the
rate of dissent was highest, that is, 22.9%
and lowest, that is, 3.57% in 1969. However,
during 1971–80, surprisingly the rate
of dissent decreased4 signifi cantly up to
4.22% (highest 10.52% in 1980, 10.20% in
1978 and lowest at 1.27% was recorded in
1976). This decline continued during 1981–
90 and the rate of dissent was recorded at
4.07% (no dissent was recorded in 1986).
In the past two decades (1991–2000
and 2001–10) the rate of disagreement
in benches with the CJI has gone down
further to 1.72% and 2.70% respectively.
In 1996, 2000, 2001, 2009 and 2010, not
a single dissent was recorded in the CJI
benches. No dissents have been recorded
from 2011 to 2014 so far in any of the
benches with the CJI.
The present declining rate of dissent
in the Supreme Court decision-making
when the CJI is a part of the bench is also
disquieting. Our observations of this
trend are as follows:
(1) Some of the chief justices were able
to create a democratic ambience in the
bench where other judges felt comfortable
to express disagreement and hence
the dissent rate was high, that is, in fi rst
two decades and mainly in 1951, 1952 and
1953.5 Justice S B Sinha, argues that
“Dissent means existence of demo cracy.”
He said, “Dissent means expression of own
opinion by the judge. It does not affect
the verdict. If dissent is not allowed, it
means judiciary is not free.”6
(2) Looking at the last two decades when
the velocity of dissent was found at its
lowest, we are forced to think that democratic
elements were lost in this period
and judges were not allowed to dissent.
In 1996, 2000, 2001, 2009 and 2010, not
a single dissent was recorded in the CJI
benches. This trend continues in the
present decade also.
 

The following could be the possible
reasons for the absence of such dissent:
(a) It may be the presence of the CJI
which restricts indirectly/directly other brother judges from expressing their
disagreement in the bench.7
(b) It is also possible that as the CJI has
administrative powers vested in him8
specifi cally power to constitute benches,
he is in a position to infl uence his brother
judges not to raise questions regarding
his judgment or perhaps, he constitutes
benches of like-minded judges where
the possibility of dissent is diminished
considerably. Hence the possibility of
“bench hunting” cannot be denied. 

Leading Dissenters
The Supreme Court has had some famous
dissenters who despite diffi culties preferred
to express their disagreement. For
instance, the one possible reason behind
the high rate of dissent in 1950, 1951 and
1952 was the presence of one such judge,
Justice Fazl Ali, who was known for his
dissenting opinions.9 Similarly, Justice
A K Sarkar and Justice K Subba Rao
made their presence felt in the legal
academia through their dissenting
opinions which is clearly visible in the
data of years 1961,10 1962,11 196312 and
1964. Justice Hidaytullah and Justice
J C Shah also contributed to this high
rate of dissent. It would be pertinent to
mention that Justice Sarkar made the
maximum number of dissents (49 dissenting
opinions)
 

We made the following observations
while looking at the data on the leading
dissenters of the Supreme Court:
(1) The dissenting opinion displays a
different insight, logic, craftsmanship,
or some other similar quality which
cumulatively contribute to the reputation
of a judge. When we read about judicial
giants like Justice Marshall, Justice
Holmes, Justice Learned Hand, Justice Brennan or about Justice Michael Kirby
and Justice Khanna and see their impact
on the legal system we cannot ignore
their ability to write good and strong
dissent notes.
(2) Dissent is not prohibited but the environment
in which it can occur is probably
lacking in recent times. Data suggest
that this decline started in the third
decade, which was known for the “impact
and infl uence” of Indira Gandhi on
all institutions, including judiciary. She
openly declared that she “wants committed
judges.”
 

Judicial Dissent
 
A judge who writes a dissenting opinion
contributes to the existing legal knowledge
and advances the possibility of the
legislature, judges and legal academia
accepting his dissenting reasoning. We
have classifi ed the famous dissenting
opinions of the Supreme Court which
have gained recognition.
(1) Dissenting Opinons That Were
Recognised by the Legislature: The
fi rst case in this category was the New
Maneck Spinning v Textile Labour, AIR
1961 SC 867. In this case, the dissenting
opinion of Justice Subba Rao laid the
foundation of the Payment of Bonus Act,
1965. His line of argument that minimum
bonus irrespective of profi t or loss of
employer should be paid also gained acceptance.
The second was ADM Jabalpur
v Shivakant Shukla, AIR 1976 SC 1207.
Justice H R Khanna delivered his famous
dissenting opinion which argued that
Article 21 is not the sole repository of the
right to life and personal liberty, and
that such a right cannot be taken away
under any circumstances without the authority of the law in a society governed
by the rule of law. Dissenting from the
majority opinion, he supported the view
that the Presidential order of 27 June
1975 and the maintainability of the
habeas corpus petitions proceed on a
different plane and one should not affect
the other. Further, he held that the legality
of the detention orders was open to
question and such petitions were maintainable
despite that order.
(2) Dissenting Opinions Recognised by
Subsequent Benches of the Supreme
Court: The fi rst case in this category
was A K Gopalan v State of Madras, AIR
1950 SC 27. In this case the dissenting
opinion of Justice Fazl Ali was recognised
later in Maneka Gandhi v Union of
India which overruled the majority
opinion of Gopalan and held that any
law which deprives a person of personal
liberty under Article 21 should satisfy
the requirerequirement of Article 19. The Court
also accepted the infl uence of the due
process doctrine in Indian constitutional
jurisprudence and that any procedure
must be “fair, just and reasonable.”
Another case in this category was the
dissenting opinion delivered by Justice
Subba Rao in Radheyshyam Khare v The
State of Madhya Pradesh, AIR 1959 SC 107
which laid down the premise of the law
relating to principles of natural justice
in the case of administrative bodies
and was subsequently recognised. The
Supreme Court in A K Kraipak v Union
of India, AIR 1970 SC 150 held that the
distinction between quasi-judicial function
and administrative function had
become quite thin and was being gradually
obliterated. Therefore, if the action
of an authority affects the rights or the
interests of a person, he must be heard.
Thus, even before, Ridge v Baldwin, 1964
AC 40, State of Orissa v Dr Binapani Dei, and Kraipak, Justice Subba Rao anticipated
the correct law on the point and
observed in his dissenting note in
Radheshyam case that the concept of a
judicial act has been conceived and
developed by the English judges with a
view to keep administrative tribunals
and authorities within bounds. Unless,
the said concept is broadly and liberally
interpreted, the object will be defeated,
that is, the power of judicial review will
become innocuous and ineffective.
(3) Dissenting Opinons Which Received
Appreciation from the Legal
Academia: Under this category we place
the dissenting opinion of Justice Subba
Rao in M S M Sharma v S K Sinha wherein
he observed that privileges are still
archaic, uncertain and repressive and
therefore cannot be given overriding effect
over fundamental rights. In Naresh
Shridhar Mirajkar v State of Maharashtra,
Justice Hidaytullah’s dissent raised doubts
about the majority. He observed that
fundamental rights may be violated by
the judiciary and hence any judicial
action should also be amenable to writ
jurisdiction. There are a few other pronouncements,
13 appreciation of which
can be classifi ed under this category
 
Conclusions
 

We can safely argue that difference of
opinions amongst judges is to be taken
as a healthy democratic trend which
eventually strengthens the entire legal
system. For example, it was the impact
of the doubts raised by the two learned
judges, Justice Hidayatullah and Justice
J S Mudholkar in Sajjan Singh v State of
Rajasthan14 that got the whole matter
referred to a larger bench of 11 judges,
that is, in Golak Nath v State of Punjab.15
It held that Parliament cannot amend
fundamental rights at all. This decision
of the Supreme Court forced Parliament
to amend the Constitution16 in order to
nullify the effect. Finally, the issue was
settled by a 13-judge bench in Keshvanand
Bharati v State of Kerala, AIR 1973 SC 1461,
which says that Parliament in exercise
of its constituent power under Article 368
of the Constitution can change, amend or
modify the Constitution, including the
chapter on fundamental rights. However Parliament cannot change or destroy the
“basic structure” of the Constitution. The
doctrine of “basic structure” once mentioned
by Justice Mudholkar in the Sajjan
Singh case became formalised with
Keshvanand Bharati v State of Kerala. It can
be argued here beyond any doubt that
the development of the basic structure
principle in India is the result of disagreement,
which started in the Sajjan Singh
case. Dissenting opinions are vindicated
because the social, economic, or political
environment changes. But the decline in
the number of dissenting opinions in
the Supreme Court does not bode well.
 
 

Notes
 
1 Originally, under Article 124(1), the strength
o f the Court was fi xed at eight, including the
chief justice. However, the Constitution gives
power to the Parliament to increase the number
of judges. In exercise of this power under
Article 124(1) Parliament passed the Supreme
Court (Number of Judges) Act, 1956 which
was amended in 1977 and again in 1986 progressively
to increase the number to 25. See
M P Jain, 2009, Indian Constitutional Law,
LexisNexis Butterworth’s Wadhwa, p 192.
2 Lee Epstein, William M Landes and Richard A
Posner, “Why (and When) Judges Dissent: A
Theoretical and Empirical Analysis” (20 January
2010). U of Chicago Law & Economics, Olin
Working Paper No 510, available at SSRN:
http://ssrn.com/abstract=1542834, accessed on
19 January 2016.
3 During 1950 to 1960, 89% cases were decided
unanimously and this trend continued in the
subsequent decade (1961–70).
4 During 1971–80, surprisingly the rate of unanimous
decisions increased signifi cantly up to 96%
and in the last two decades it reached 98%.

During this period Indian Supreme Court was
blessed with some democratic chief justices
who created the ambience where dissent was
fl ourished viz, Justice H J Kania, Justice Patanjali
Shastri, Justice M C Mahajan, and Justice
B K Mukherjee, etc.
6 See, “Dissent among Judges Is Healthy: Former SC
Judge,” available at: http://articles.timesofi ndia.
indiatimes.com/2011-02-15/pune/ 28546316_1_
sc-judge-retired-supreme-court-judge-dissent.
7 This has happened in the Supreme Court of the
United States. During the tenure of Chief Justice
Marshall the rate of dissent was minimum
because the brother judges in the bench along
with him were infl uenced by his leadership and
oratory qualities.
8 Practically there is no check on the powers of
the CJI.
9 His dissenting opinions in A K Gopalan v State
of Madras, Romesh Thaper v State of Madras
and Brij Bhusan v State of Delhi are quite
famous among the legal fraternity.
10 22.9% dissent rate was recorded in 1961.
11 11.76% dissent rate was recorded in 1961.
12 15.9% dissent rate was recorded in 1961.

13 See dissenting opinion of Justice Bhagwti in
Bhachan Singh v State of Punjab, AIR 1980 898,
dissenting opinion of Justice A M Ahmadi and
Justice M M Punchhi in Supreme Court Advocates
on Record Association v Union of India,
AIR 1994 SC 268, dissenting opinion of Justice
Ruma Pal and Justice S M Quadri in TMA Pai
Foundation v Union of India, AIR 2003 SC 355,
dissenting view of Justice S B Sinha and Justice
S N Variava in Zee Telefi lms Ltd Union of India,
AIR 2005 SC 2677 and dissent of Justice
Dalveer Bahdari in Ashok Kumar Thakur v
Union of India, (2008) 6 SCC 1.
14 The Constitutional Validity of the 17th Constitutional
Amendment was challenged in the
Sajjan Singh v State of Rajasthan, AIR 1965
SC 845. Justice J S Mudholkar in this case fi rst
time used the phrase “Basic Feature” of the
Constitution.
15 The same issue was again considered by a
eleven judge bench in famous I C Golak Nath v
State of Punjab, AIR 1967 SC 1643.
16 See the Constitution (Twenty Fourth Amendment)
Act, 1971.