The primary question for consideration before the Apex Court in Centre for Public Interest Litigation v. Union of India1 was whether Section 17A of the Prevention of Corruption Act, 1988, was constitutionally valid. The Bench delivered a split verdict, with two divergent but carefully reasoned opinions, leading to a reference to the Hon'ble Chief Justice of India for the constitution of a larger Bench. 

Justice B.V. Nagarathna held Section 17A to be constitutionally infirm in its very conception and that the provision violated Article 14 by creating an impermissible class of protected public servants and by erecting a threshold that obstructed independent and unbiased investigations into corruption. The Learned Judge rejected the reading- down approach, holding that Courts cannot add words to a statute or substitute “Government” with “Lokpal” where the legislative text is clear and observed that Section 17A was, in substance, an attempt to revive provisions such as the Single Directive and Section 6A of the Delhi Special Police Establishment Act, 1946 (DSPE Act), which had already been struck down in Vineet Narain v. Union of India2 and Subramanian Swamy v. Director, Central Bureau of Investigation and Another3. The opinion concluded on an ethical plane, emphasising probity in public life and reminding public servants that service to the nation must prevail over personal gain.

Justice K.V. Viswanathan adopted a saving approach. Proceeding on the premise that Parliament sought to protect honest public servants from harassment and the resulting “policy paralysis,” the learned judge attempted to preserve the provision by subjecting it to the discipline of Article 14 through the technique of reading down. While acknowledging the legitimate concern of “policy bias”, that the executive involved in the impugned decision would also control the sanction for investigation, it was held that the provision could survive if the screening of information was entrusted to an independent mechanism. To that end, the learned judge proposed that where the public servant fell within the jurisdiction of the Lokpal or Lokayukta, requests under Section 17A must necessarily be routed through those bodies, thereby insulating the process from executive influence.

Both learned judges considered the same statutory text, the same constitutional provisions, the same precedents and the same submissions, yet arrived at opposing conclusions. The divergence was rooted in differing judicial instincts about constitutional limits, institutional trust, and the permissible techniques of interpretation. This split verdict offers a concrete illustration of why judges differ, and why such differences are an inherent feature of constitutional adjudication rather than a flaw in it.

Judges differ because the law does not speak in absolutes; it speaks through judgments. Dissent or the expression of a differing opinion is not a sign of weakness or infirmity of the system, but an integral part of judicial reasoning, particularly when Courts of last resort are called upon to decide questions of law at the intersection of text, principle, precedent, and constitutional values. Where the law does not compel a single answer, divergence is not merely possible but inevitable at times.

The Indian Constitutional Experience with Dissent:

The Indian experience captures both the necessity and the complexity of judicial dissent. The Supreme Court of India, following the common law tradition, expressly permits concurring and dissenting opinions under Article 145(5) of the Constitution. Yet the early years of constitutional decision-making revealed the difficulties of excessive fragmentation. In re: Delhi Laws Act, 19124, seven judges delivered seven separate opinions on legislative delegation, leaving later benches to extract a workable ratio. As later acknowledged in Rajnarain Singh v. Chairman, Patna Administration Committee5, the law had to be extracted by finding the greatest common measure of agreement. Similar uncertainty arose in S.R. Bommai v. Union of India6, where multiple opinions left the precise contours of Article 356 unsettled.

Indian constitutional history offers some of the most compelling illustrations of dissent performing its highest constitutional function. Justice Fazl Ali's dissent in A.K. Gopalan v. State of Madras7 rejected the rigid compartmentalisation of fundamental rights, insisting that Articles 19, 21, and 22 overlap and must be read together, and that “procedure established by law” cannot be emptied of fairness, reasonableness, and basic principles of justice, an approach that lay dormant for two decades before being vindicated in R.C. Cooper v. Union of India8 and ultimately crystallised in Maneka Gandhi v. Union of India9. Justice Subba Rao's dissents similarly anticipated later doctrinal shifts, whether in rejecting inherited colonial canons that placed the State above the law or in articulating an expansive vision of liberty, equality, and constitutional supremacy. In Kharak Singh v. State of U.P.10, Justice Subba Rao and Justice J.C. Shah dissented to recognise privacy as part of personal liberty under Article 21, a view later accepted in Justice K.S. Puttaswamy (Retd.) v. Union of India11, which affirmed privacy as a fundamental right. Most famously, Justice H.R. Khanna's lone dissent in Additional District Magistrate, Jabalpur v. Shivakant Shukla,12 affirming that the right to life and personal liberty is inalienable and does not depend on constitutional grace, stood in moral defiance of executive absolutism and was expressly affirmed decades later in Justice K.S. Puttaswamy13, where the Court acknowledged his view as the correct statement of constitutional law.

When one looks beyond India, constitutional history across jurisdictions reveals the same phenomenon of dissents that were later recognised as the correct view. Justice Louis Brandeis's celebrated dissent in Olmstead v. United States (1928)14 warned that unchecked technological surveillance would hollow out constitutional liberty; nearly four decades later, the Supreme Court in Katz v. United States (1967)15 effectively adopted his reasoning and overruled Olmstead. Justice Black's dissent in Betts v. Brady (1942),16 which argued for the fundamental nature of the Sixth Amendment right to counsel, was later confirmed when the Supreme Court adopted his view in Gideon v. Wainwright (1963).17 In the United Kingdom, Lord Atkin's lone dissent in Liversidge v. Sir John Anderson18, insisting that “amidst the clash of arms, the laws are not silent,” rejected judicial deference to executive power during wartime and has since come to embody the Rule of Law itself. This was later stated to be a correct view of the law by Lord Diplock in Inland Revenue Commissioners v. Rossminister Ltd (1980),19 almost forty years later. Justice Harlan's dissent in Plessy v. Ferguson (1896)20 had contended that the American Constitution was “colour blind” and sought to end racial discrimination in the United States, which laid the foundation for Brown v. Board of Education (1954).21 Justice Holmes' dissents reshaped free speech law. Justice Radhabinod Pal's extensive dissent at the Tokyo War Crimes Tribunal, rejecting the convictions of all accused and mounting a powerful critique of retroactive criminalisation and victor's justice, remains a striking illustration of how a lone judicial voice can challenge the moral and legal foundations of an entire tribunal. Recently, Lord George Leggatt's powerful dissent in Shvidler v. Secretary of State for Foreign, Commonwealth and Development Affairs22 concerning sanctions imposed under the Sanctions and Anti-Money Laundering Act, 2018, drew global attention. He cautioned that imposing severe sanctions merely on the basis of association, without proof of personal wrongdoing, constitutes a grave intrusion on liberty, and warned that courts fail in their duty if they simply rubber-stamp assertions made by the executive to justify invading individual liberties without subjecting those assertions to critical scrutiny.

Comparative and Institutional Approaches to Dissent:

The roots of dissent are deep-seated, and legal systems have historically responded to judicial disagreement in markedly different ways. Civil law systems, predominant in continental Europe, have traditionally sought to minimise visible dissent in the belief that certainty and authority are best preserved through unanimity. Decisions were delivered anonymously in the name of the court as an institution, with dissenting opinions discouraged or prohibited. The underlying assumption was that public confidence in the judiciary depends upon the law speaking with one voice. Dissent was feared as a marker of uncertainty and institutional fragility. Vestiges of this approach remain even today, particularly in Germany, where dissenting opinions are generally impermissible apart from the Federal Constitutional Court at Karlsruhe.

1.The common law tradition took a fundamentally different path.

From its inception, it accepted that adjudication is not a mechanical application of rules, but a reasoned response to competing claims. English courts permitted separate opinions, recognising that the law develops most coherently when principles are examined from multiple perspectives. Lord Reid famously cautioned that judicial opinions should not be read as statutes, while Justice Felix Frankfurter regarded plurality of reasons as a sound practice that strengthens rather than weakens the law.

Why Human Beings Differ:

At a more fundamental level, human beings differ in opinion because cognition itself is neither uniform nor mechanically objective. Social psychology demonstrates that perception is shaped by prior beliefs, cultural conditioning, and identity frameworks that influence how information is filtered and interpreted. Individuals vary in risk appetite, sensitivity to harm, tolerance for ambiguity, and reliance on intuition versus analytical reasoning. Their moral reasoning evolves differently depending on environment, education, and social experience. Sociologically, individuals are embedded within distinct communities, traditions, and normative structures that shape what they regard as fair, just, or legitimate. Even when confronted with identical facts, these layered influences affect how evidence is weighed, how intent is inferred, and how competing considerations are prioritised. Divergence in opinion, therefore, is not accidental; it is a structurally predictable outcome of human cognitive and social diversity.

Reasons for Judicial Divergence and the Discipline of the Constitutional Oath:

Judges differ on the same issue for a constellation of interconnected reasons. Constitutional language is deliberately open- textured, designed to endure across generations. Expressions such as “procedure established by law,” “reasonable restrictions,” “public order,” or “constitutional morality” necessarily invite interpretation. For instance, sentencing demands normative judgments about proportionality, deterrence, rehabilitation, and societal impact. Judges may disagree on whether such concepts demand restraint or expansive realisation, and disagreement is the inevitable consequence of that choice.

1. At a deeper level, judges differ because constitutional interpretation is value-laden. Conflicts between liberty and security, equality and religious freedom, individual rights and collective interests cannot be resolved by value-neutral rules alone. The Constitution does not prescribe a fixed hierarchy of values. Judges must weigh competing considerations, and reasonable minds may assign different weights.

2. At its most fundamental, judicial disagreement flows from the dual nature of judicial independence, both individual and institutional. A judge cannot suppress a genuine constitutional difference merely to achieve unanimity without compromising the integrity of the judicial role.

3. At the biological and cognitive level, judges differ in neural processing styles, emotional regulation, and sensitivity to threat or harm; this affects how ambiguity is handled, how risk is perceived, and how credibility, intent, and severity are inferred from the same material. Emotion-driven brain systems can influence what feels convincing or doubtful, particularly in cases involving moral outrage, vulnerability, or public safety. At the psychological level, well-documented cognitive biases, such as confirmation bias, anchoring to initial impressions, and belief perseverance, can subtly influence how evidence is weighed and which arguments appear stronger, often without conscious awareness.

4. It is in this context that dissent assumes its profound significance. A dissenting opinion is not mere opposition; it is the voice of constitutional conscience. Chief Justice Hughes famously described “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 justice believes the court to have been betrayed.”

5. Dissent also strengthens the judicial process. It refines majority reasoning, restrains power, reassures litigants that arguments have been fully considered, and preserves intellectual integrity. Justice Cardozo noted that while the majority decides, the dissent speaks to the future. Justice Scalia candidly observed that dissents “augment rather than diminish the prestige of the Court.” As Alan Barth observed, dissenting judges are often “Prophets with Honor.” In the United States, Justice Ruth Bader Ginsburg emerged as one of the most persistent dissenting voices of her generation.

6. These dissents, initially standing in opposition to prevailing majorities, illustrate how constitutional memory is preserved through principled disagreement, enabling the law to recognise its own errors and realign itself with constitutional values.

In the end, judges disagree because law is not arithmetic and justice is not mechanical. Dissent is the price of intellectual honesty and the safeguard of constitutional democracy. Oliver Cromwell's appeal— “bethink you that you may be mistaken”, captures its enduring value. It is dissent that keeps this possibility alive, ensuring that constitutional adjudication remains reflective, open, and faithful to its highest purpose- the pursuit of justice according to law, not according to predisposition.

Yet this freedom to differ operates within the solemn discipline of the judicial oath, which is not ceremonial in character but constitutive in obligation. The oath imposes an unqualified duty of intellectual independence and decisional neutrality, demanding that every conclusion be anchored solely in the Constitution, the law, and the record, uninfluenced by personal, political, or ideological leanings. As Justice Ujjal Bhuyan of the Supreme Court observed, while Judges, as human beings, may possess individual inclinations, the judicial function requires that such inclinations remain subordinate to constitutional fidelity. A constitutional court ceases to inspire confidence the moment its decision appears predetermined by the identity of the judge rather than governed by the authority of law. Thus, the judicial oath and the legitimacy of dissent are not opposing forces but complementary guarantees, together ensuring that while judges remain free to differ in reasoning, they remain bound in fidelity, neutrality, independence, and the supremacy of the Constitution.

The judge is not an agent of any ideology nor a representative of any political philosophy, but the sentinel of the Constitution. Though Judges, being human, are shaped by their experiences and intellectual influences, the Constitution requires that the exercise of judicial power remain insulated from personal disposition. Judicial independence, a basic feature of the Constitution, is not merely independence from external interference, but equally independence from internal predisposition. Any perception that decisions are shaped by personal belief rather than constitutional duty is itself destructive, for the legitimacy of the judiciary rests as much on public confidence as on constitutional authority.

End Notes:

1.WP(C) 1373 of 2018

2.(1998) 1 SCC 226

3.(2014) 8 SCC 682

4.(1951) SCC 568

5.(1954) 2 SCC 82

6.(1994) 3 SCC 1

7.(1950) SCC 228

8.(1970) 1 SCC 248

9.1978) 1 SCC 248

10.1964 1 SCR 332

11.(2017) 10 SCC 1

12.(1976) 2 SCC 521

13.Supra

14.277 U.S. 483 (1928)

15. 389 U.S. 347 (1967)

16. 316 U.S. 455 (1942)

17. 372 U.S. 335 (1963)

18. (1941) UKHL 1

19. (1980) AC 952

20. 163 U.S. 537 (1896)

21. 347 U.S. 483 (1954)

22. 2025 UKSC 30

23. (2017) 10 SCC 1

Author Justice Mohammed Nias C.P is a Judge at Kerala High Court. Views are personal.