Traditionally, an empirical work on the dissenting opinions of Judges in the Supreme Court of India has been fairly limited. This may be attributed to the uncertainty of methodology to collect data and produce the most reliable results to understand the pattern of judgment delivery system in the Supreme Court. To overcome this limitation, the present paper aims to argue the case for an empirical study on how judges exercise their legal acumen to come to an independent conclusion on particular disputes which ultimately affect the health of Indian democracy. How free and capable is an individual judge in the bench to express his/her democratic of 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 Supreme Court of India? Which Justices dissent more frequently than others? Is there any regular pattern of voting amongst the Justices of the Court when Chief Justice 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 Supreme Court’s Judgments delivered from 1950 to 2014 using the source of All India Reporters (AIR) and Supreme Court Cases (SCC).
Dissenting Opinions in the Supreme Court of India
The value of free speech and expression gets strengthened when judges capably use it to arrive at different opinions- informed, effective and judicious. On many occasions we see the positive outcomes of these dissenting opinions on reforming the law and correcting the error of the majority opinion in the forthcoming judgments. However, in the judgment delivery system of India, our judges either concur or supplement the majority opinions in most of the cases. It does not mean that the free expression of dissent is nonexistent. But it is very occasional and declining at an unusual speed. It is clear when we look at Figure 1 and Figure 2 which provides general and decadal rate of dissent respectively in the Supreme Court of India.
The phenomenal decline in expressing dissenting opinions of the judges raises many questions on the credibility of the very institution of Supreme Court. Our observations of the trend are as follows:
Dissent in the Chief Justice’s Bench
It is generally observed that the rate of dissent was very low when the Chief Justice himself is the part of the bench over the last sixty-five years (Figure 3). It is also surprising that no Chief Justice of India has expressed his dissenting opinions.
In the very first decade, what we found, the rate of dissent in benches of CJI was 10.97%. 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 rate of expressing dissent in CJI bench was found 10.60% (out of total 849 CJI benches, in 90 dissents were recorded)[ During 1950 to 1960, 89% cases were decided unanimously and this trend continued in the subsequent decade (1961-1970)]. In the year 1961 rate of dissent was highest i.e. 22.9% and lowest i.e. 3.57% was noticed in 1969. However, during 1971-1980, surprisingly the rate of dissent decreased significantly up to 4.22% (highest 10.52% in 1980, 10.20% in 1978 and lowest 1.27% was recorded in the year 1976). This decline continued during 1981-1990 and rate of dissent was recorded 4.07% (no dissent was recorded in the year 1986).
In the last two decades (1991-2000 & 2001-2010) the rate of disagreement in benches with CJI has gone down further up to 1.72% and 2.70% respectively. In the years, 1996, 2000, 2001, 2009 and 2010, not a single dissent was recorded in CJI’s benches. The present decade (2011-2014) is witnessing the abysmal rate of dissent in the CJI benches. No dissents have been recorded from 2011 to 2014 so far in any of the benches with Chief Justice of India.
The present declining rate of dissent in the Supreme Court decision making when Chief Justice is a part of the bench is also disquieting. Our observations of this trend are as follows:
Following could be the possible reasons for the absence of dissents in CJI’s benches:
LEADING DISSENTERS IN THE SUPREME COURT OF INDIA
Like United States of America, Indian Supreme Court was also privileged to have some famous dissenters who in spite of all difficulties preferred to express their disagreements. For instance the one possible reason behind the high rate of dissent in the year 1950, 1951 and 1952 was the presence of one such judge i.e. Justice Fazl Ali who was known for his dissenting opinions[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 in the legal fraternity]. 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, 1962, 1963 and 1964. Justice Hidaytullah and Justice J. C. Shah also contributed in this high rate of dissent. It would be pertinent to mention that Justice A. K. Sarkar has maximum dissents (49 dissenting opinions) to his credit [Figure 5].
We made the following observations while looking at the data on the leading dissenters of the Supreme Court:
The dissenting opinion displays a different insight, logic, craftsmanship, or some other similar quality which cumulatively create prestige and 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 legal system we cannot ignore their ability to write good and strong dissent. Perhaps we are lacking judges of that stature which we have witnessed in the past. In other words, we can safely argue that the quality of judges is seriously declining.
Judicial Dissents which got recognition with time
Undoubtedly, a judge writing dissenting judgment is making the law hoists the question of the acceptability of the reasoning adopted by the dissenting judge by the legislature, academia and judges. At the same time, the potency of a dissenting judgment is a matter for the future and depends on the direction which legal learning and experience dictate in the future. We have classified the famous dissents of the Supreme Court which got the recognition with time in following three categories.
To conclude, we can safely argue that difference of opinions amongst judges is to be taken as healthy democratic trend which eventually strengthen the entire legal system. For example, it was the impact of the doubts raised by the two learned judges, Justice Hidaytullah and Justice J. S. Mudholkar in famous Sajjan Singh v. State of Rajasthan the whole matter was referred to larger bench of eleven judges i.e. Golak Nath v. State of Punjab, which held that Parliament cannot amend fundamental rights at all. This decision of the Supreme Court forced the Parliament to amend the constitution in order to nullify the effects. Finally, the issue was settled by thirteen judge bench in famous Keshvanand Bharati Case, which says that Parliament in exercise of its constituent power under Article 368 of the constitution, can change, amend, modify constitution including the chapter of fundamental rights, however they cannot change or destroy the ‘basic structure’ of the constitution. The doctrine of ‘basic structure’ once sounded by Justice Mudholkar in Sajjan Singh case became formalised with Keshvanand Bharati v. State of Kerala. It can be argued here beyond any doubt that the development of basic structure principle in India is the result of disagreement, which started in Sajjan Singh Case. Dissents are vindicated because the social, economic, or political environment changes. But the decline in dissent in the Supreme Court of India has put a threat to this institution.