'Dissents that Shaped Our Constitution'

"The law is shaped not merely by the majority rulings but sometimes it is shaped by the great dissenting judgments on our Constitution. What appears to be a dissenting view, a view contrary to popular public opinion later becomes the law of the land. We have these dissenting views of Justices Brandeis and Holmes which became the law in the US", Senior Advocate Arvind Datar has remarked.Speaking on 'Dissents that Shaped our Constitution' at the Kerala High Court Advocates' Association's 'Continuing Legal Education Programme, 2022', Mr. Datar said he would highlight 5-6 such dissents which were "completely revolutionary in that period of time" and which later became the norm, the law of the land in India.Justice Fazal Ali's dissent in A. K. Gopalan's case"A. K. Gopalan case was one of the first judgments in the Supreme Court- If you take up the A. K. Gopalan case, you will find it was writ petition no. 13 of 1950. What is puzzling is what was writ petition 1? What were 1 to 12? I am trying to find out and when I do, I will write a small piece in one of the journals...there were initially six Supreme Court judges and the A. K. Gopalan case had a bench of six judges. The 7th judge came only in September, 1950 onwards- Justice N. Chandrashekar Iyer. Mercifully, no judgment is a tie in that period. Even A. K. Gopalan was approximately 4:2. I would recommend all youngsters to read Justice Fazal Ali's dissent. There was a Preventive Detention Act of 1950 under which A. K. Gopalan and many members of the Communist party were detained. The question was that I have rights under Articles 19(1)(d), 21, 22, so when you detain me, are you restricting my right to movement and is it violating 21? Does it amount to reasonable restriction under 19(4)? That was a time when after Independence, there was a Communist movement, strikes were there, general public sentiment was that there should be a preventive detention law and some people should be detained without trial for a certain period. The majority upheld the entire Act, except section 14- section 14 was that the Executive may not disclose reasons to the court for detention. Then comes the first masterly dissent of Justice Fazal Ali. He was a judge of the Supreme Court for just 2.5 years. The way he had written his judgment is absolutely mesmerising. He starts off by saying what is the scope of 19, 21, 22. And for the first time he says that do not consider these articles in isolation, you must consider them as an interplay between each other. There is no point saying that my fundamental right under 19 can be taken away by a law under 21. The way he discusses the Canadian, Japanese, US Constitutions, what is the due process, what is the procedure established by law- it took a great amount of courage for him to say that the entire Act can be struck down, that you cannot detain a person without giving reasons, you cannot restrict his movement beyond a certain amount of time", explained Mr. DatarJustice Vivian Bose and the Anwar Ali Sarkar case"I am coming to the most beautifully written judgment, not only in India but all over the world- the most beautiful piece of English literature, the law and the passion of the man comes out in that judgment. I am talking about the dissent of Justice Vivian Bose in Anwar Ali's case. Anwar Ali Sarkar was a case which came from West Bengal. It was first heard by a bench of five judges in Calcutta. Chief Justice of the Calcutta High Court struck down this law. There was a West Bengal Special Ordinance which had a Fast Track trial procedure where the accused did not get enough safeguards which were otherwise available to him under the code of criminal procedure. Look at the offence- 50 armed dacoits raided a factory in Calcutta, they were tried and convicted under the special law. The West Bengal special ordinance of 1950 was challenged on the ground that how do you pick and choose, why should one person go for the fast-track procedure and another similar dacoit person be called for a non-special procedure? This judgment was delivered on January 11, 1952. By that time, we had seven judges in the Supreme Court. Six unanimously overruled the judgment. They said such an ordinance is needed, 50 people have raided the factory, these are difficult times, they went with the facts of the case and upheld the law and said that such a law is needed in these times. Now comes the dissent of Vivian Bose which should be read every year, like we take the Law Day pledge, this judgment is worth reading once a year. This is a judgment where Justice Vivian Bose analyses what the scope of article 14 is- when you say equal protection of the law, equality before the law, what it is. He goes step-by-step and says we are dealing with the Constitution and uses a wonderful expression, he says our Constitution is not a mummified manuscript, it is not a fossilised document, it is a living document, that we should ask ourselves the question that can this kind of law...

'Dissents that Shaped Our Constitution'

Arvind P. Datar, Senior Advocate

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