5 Days, 12 Significant Judgments And 4 Powerful Dissents

“The fate of the judiciary as an institution, and our fate as a democratic nation, hinges on whether we, as a people speak out, or watch passively.”Justice DY Chandrachud had, in January this year, prophetically remarked that India needed to rethink the power of dissent.Delivering the presidential address at an event organised by O.P. Jindal Global Law University at the Indian Law Institute on January 11, he had highlighted the three most powerful dissents in the history of the Indian legal system – by Justice Saiyid Fazl Ali, Justice Subbarao and Justice H.R. Khanna – and had hit the nail on its head when he observed that there was perhaps something about Indian culture that made one want to accommodate rather than dissent.The final week of September was a historic one especially when viewed in the light of these observations made by Justice Chandrachud way back in January, as a sort of fore-shadowing of the powerful dissents that were delivered this week. While several eagerly awaited judgments were delivered one after the other, the week saw dissenting opinions being delivered in four major cases dealt with by the court.Here is a roundup of twelve such significant judgments, with four of them including powerful dissents: Constitutional validity of Aadhaar Act upheld, but some provisions struck down [Justice DY Chandrachud dissents]The Aadhaar judgment was probably the most awaited of the lot. The validity of the Act was upheld by a Bench comprising Chief Justice of India Dipak Misra and Justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan, by a 4:1 majority. The majority judgment upheld Aadhaar linkage with most services; however, the linkage and requirement of Aadhaar with mobile numbers and bank accounts was struck down.The verdict also started the string of dissents last week, with Justice Chandrachud’s emphatic dissent from the majority to hold the entire Aadhar project to be unconstitutional.The very act of passing the Aadhaar Act, 2016 as a money bill was held to be unconstitutional by him, as against the majority judgment, which held that there was no impropriety in introducing it as a money bill. Using strong language, Justice Chandrachud held that the passing of Aadhaar Act as money bill is a “fraud on the Constitution”.He went on to hold the Aadhaar project to be violative of informational privacy, opining that the Aadhaar had potential for surveillance, and that the architecture posed risk on the potential violation of leakage of the database.Justice Chandrachud further asserted that the Aadhaar project, which commenced from 2009, suffered from constitutional invalidity, and also noted that the government has repeatedly violated the interim orders of the Supreme Court, which had prohibited making Aadhaar mandatory for availing benefits.Based on the premise of unconstitutionality of Aadhaar, Section 139AA of the Income Tax Act, which mandates linking of PAN with Aadhaar, was also struck down. It may be noted that the majority decision has upheld Section 139AA.You may read: Aadhaar Judgment: Certain Concerns by Dr. Deva Prasad And Suchithra MenonBhima Koregaon: No SIT to be constituted [Justice DY Chandrachud dissents]A three-judge Bench of the Supreme Court, with a 2:1 majority refused to constitute a Special Investigation Team to probe the case concerning the arrest of five lawyers/journalists/human rights activists relating to violence in Bhima Koregaon in January this year.In his second dissent, Justice Chandrachud observed that “dissent is a symbol of vibrant democracy” and “voices in opposition cannot be muzzled by persecuting those who take up unpopular causes”, to hold that a Special Investigating Team must be appointed to probe the arrest of five activists in connection with the Bhima-Koregaon violence and that the probe must be monitored by the court.This was as against the majority judgment in the case, with CJI Misra and Justice AM Khanwilkar opining that the petition, at the instance of the next friend of the accused for an independent probe or a court-monitored investigation, cannot be countenanced, much less as a PIL as the petitioners cannot be heard to ask for the reliefs which otherwise cannot be granted to the accused themselves.Disagreeing with the majority, Justice Chandrachud took note of the “unfair press conference” by the Pune Police, and also spoke about how dissenting voices also have their space under the Constitution.“Individuals who assert causes which may be unpopular to the echelons of power are yet entitled to the freedoms which are guaranteed by the Constitution. Dissent is a symbol of a vibrant democracy. Voices in opposition cannot be muzzled by persecuting those who take up unpopular causes. Where, however, the expression of dissent enters upon the prohibited field of an incitement to violence or the subversion of a democratically elected government by recourse to unlawful means, the dissent ceases to be a mere expression of opinion,” he...

5 Days, 12 Significant Judgments And 4 Powerful Dissents

Apoorva Mandhani

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