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The Rightness Of Dissent

If Supreme Court believes ‘ADM Jabalpur’ went wrong, it must review the case suo motu.

Written by Rekha Sharma | Published: March 19, 2016 12:50 am
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It came as a pleasant surprise that the Chief Justice of the Allahabad High Court Dhananjaya Y. Chandrachud, while speaking on the 150th anniversary of the said high court, talked of dissent and its importance in a democratic society.

The immense importance of what he said can be gauged from the fact that The Indian Express (March 14, 2016) thought it fit to relegate to sidelines what the president of India and chief justice of India said on the occasion, reducing their speeches to a mere footnote.

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The speech of the Allahabad HC chief justice is all the more welcome if one recalls what his father (Y.V. Chandrachud) had to say on the value of dissent in the infamous ADM Jabalpur (or Habeas Corpus), which strangulated the right to dissent and in one stroke took away what the chief justice feels to be a right worthy of protection.

What makes the observation even more significant is the fact that not only he but the entire judiciary is still shackled by the judgment in ADM Jabalpur, as it holds good till date and is binding.

Shall we assume that he is debunking the judgment and holding it to be an ugly pimple on the face of the Indian judiciary? If he could quote Amartya Sen, what prevented him from referring to ADM Jabalpur and criticising it as being against the very basic structure of our Constitution which, according to him, is also to respect dissent?

It would have been highly appreciated if he had come out bravely and boldly against the dictum of the judgment. He would have won accolades from all who cherish and uphold the protection of the right to dissent.

It would have been in the fitness of things had he, in clear and unambiguous terms, pleaded for a review of the said judgment which continues to hang as a sword of Damocles over the heads of all who hold dear the right to dissent.

Not only that, talking of the right to dissent in extremely ambiguous terms, as the chief justice has done, is yet another aspect that has dangerous potents. He has not talked of the extent of that right nor of its limits. Talking in general and ambiguous terms is not legal language.

We are already facing a situation where the right to dissent has become a burning topic without there being a clear line of control.

It is precisely because of this ambivalence that while to some Kanhaiya Kumar is a hero, to others he remains a villain or anti-national. Consequently, the bail order passed by the Delhi High Court in Kanhaiya’s case is generating avoidable heat and has become a subject of both appreciation and deprecation. And while we are on the subject, what prevents the Supreme Court, if it feels that ADM Jabalpur has gravely gone wrong on the right to dissent, from reviewing the same suo motu?

Unfortunately, it has become a fashion to give mere sermons. History shows how those proclaiming basic human values and the virtues of independence of thought, right of action and liberty to dissent, succumb to the pressure of forces destructive of those values and how the laws of the land were/ are easily manipulated/ interpreted, be it ADM Jabalpur or in a recent case, converting a fine into compensation and extending time, again and again, to somehow make the defaulters obey the order, and in the process, the Yamuna-like mythical Saraswati is rendered dry and dead by the very forces which should guard its survival and existence.

 

The writer is a former judge of the Delhi High Court

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  1. K
    Kumar
    Mar 20, 2016 at 12:40 am
    The learned judge has forgotten to mention Justice R N Khanna, who was a beneficiary of Congress patronage system, the lone dissenter in the landmark habeas case. Justice Khanna wrote that even during Emergency habeas writ stands.
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    1. Anuj Kaushal
      May 18, 2016 at 3:12 am
      There is no shame in admitting that a judgement overlooking civil liberties was ped and should be corrected. Though the judgement is dormant in nature, it still gives the state the potential right to abuse individual freedom should the situation arise and is unconsutional in nature. It's good that Justice Chandra brought this up and it's commendable that this well-written article was published to highlight this forgotten but extremely dangerous injustice.
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      1. A
        avinash
        Mar 19, 2016 at 1:52 am
        I agree, we will regret one day, what we should have done while we had time!
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          avinash
          Mar 20, 2016 at 4:06 pm
          I feel that instead of regretting about ADM Jabalpur , the Hon'ble justices Aftab Alam , A.K Ganguli and others should have seen to it that ADM Jabalpur should have been over ruled. And what about our Barkha Dutts , Rajdeep Sardesais etc etc , who are torchbearer for Kanhaiya , Did not even once talked about this infamous judgement? Further the great lawyers from Mumbai and the left Jhola wallah also could have at least peioned the Hon'ble SC in this very important matter but alas their time and energy is too valuable to be spent on this very critical issue.
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            dinesh
            Mar 19, 2016 at 6:26 am
            Reservations are killing us even after 70 years of independence we are still a country that talk s and practices this . If a nation has to be compeive and grow , firstly, we should do away with reservations. It should be only for the financially weak. The policies are however made with an eye on the elections and vote bank. Can we enact tough laws? No cause politicians will also come within that framework. CAn we resurrect a new India based on equality for all without these reservations? Why wouldn't India have brain drain? Do you expect intelligent and brainy to work under people who have got reservations right from admission to educational insution to recruitments to promotions? Finally the government will have to take a begging bowl to these very intelligent people who have moved out of the country and beg for investments and from foreign nations as these dumbos who have got scattered all over the government machinery due to reservations cannot transform a nation. Hope Modi Govt will do something with this stink.
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