Very often what is taken for granted now has been made possible by an act of dissent or a demand that sounded terribly out of sync with the times when it was done. When Robert Owen spoke of “eight hours labour, eight hours recreation, eight hours rest” in 1810, it was unthinkable in a world made of 16-hour working days. Now, eight hours of work is taken for granted. But it took till 1866 for the International Workingmen’s Association (IWA) to demand the eight-hour work day. Incidentally, it was for the IWA that Marx and Engels wrote the Communist Manifesto in 1848.
Far removed from the Manifesto, Charles Evans Hughes, who went on to become the Chief Justice of the US wrote, “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 judge believes the court to have been betrayed.”
The Supreme Court of India has a history of dissent. Justice H R Khanna remains far better known than most chief justices because of his brave dissenting judgment against an authoritarian government. When Justice A N Ray was made the CJI superseding others, three senior judges resigned from the Court.
The biggest dissent in the recent annals of the Supreme Court was when its four senior-most judges met the press and raised fundamental questions about the functioning of the collegium in January. They have continued with their dissent through letters to all judges of the court, warning about the government’s interference in the functioning of the judiciary and asking the CJI to secure the independence of the judiciary in these challenging times.
Fast forward to events over the last weekend, when we witnessed some chutzpah from the apex court. In a post-midnight hearing, the Court prevented a move to toy with the constitutional norms and cut short the extended time granted by the Karnataka governor to the chief minister to secure a majority. Praise for the judiciary followed thick and fast, from all quarters.
Since January, there has been increased public attention on the judiciary. The four judges who held the unprecedented press conference have faced criticism in some quarters. What was the point of the senior judges rattling the cage with the “press conference”? Could they not have shushed up and gone on with business as usual? They could have, of course. But the result would have been less conversation about what assailed the judicial system. The enormous increase in public awareness about the most important — and opaque — pillar of Indian democracy since that “press conference” is hard to overstate.
It is crucial to remember where the four judges stand in terms of their predilections. They, certainly, are not part of a “liberal” clique or wedded to the political philosophy of opposition parties. The letter they wrote to the CJI and made public is the one thing they did together. In terms of judicial philosophy and judgments, the four men stand poles apart. The issues they raised, all of which have still not been fully articulated, were enough to kick-start queries on the functioning of the judiciary. Formation of benches, details of hearings, and other such matters of the highest court were now looked at very closely and with great interest by the country. The Court was even forced to write its collegium resolutions carefully to appear answerable to the public. Whether intended or not, it brought a higher degree of public accountability to a system which had hitherto hidden behind the silence of its judges.
If any of the four persons can be described as having chimed with the view of the current central government, it is Justice Jasti Chelameswar, who in Rajbala vs. State of Haryana ruled in favour of the Haryana government. He was no darling of the “liberals” when he ruled that “every person who is entitled to vote is not automatically entitled to contest for every office under the Constitution. The Constitution itself imposes limitations on the right to contest depending upon the office. It also authorises the prescription of further disqualifications/qualification with respect to the right to contest.”
On the National Judicial Appointments Commission too, he spoke of not allowing the Executive to have a say in judicial appointments as “doctrinal heresy”. Next in line to be the CJI, Justice Ranjan Gogoi’s bench while hearing the case for fencing of the Assam border with Bangladesh and Bangladeshi immigrants, an issue close to the heart of the ruling dispensation, asked for “reasons why 18 months would be required for construction of border fencing on a stretch of 13.38 km”. And, Justice Gogoi shut off any ambiguity on the question of the National Population Register for Assam.
The Supreme Court of India does not sit en-banc but is poly vocal. Coming from different schools of judicial thought, the fact that these four judges came together for one thing must naturally direct us to the central impulse of their action. It has been to free up the courts from its lock-in with the executive. Remember, it is the collision with courts (the disqualification of then prime minister, Indira Gandhi) and the collusion with the courts (the notorious judgment on personal liberty being negotiable) that define the Emergency between 1975-77.
Justice Rohinton Nariman spoke of the centrality of dissents in his privacy judgment last year. He marked out meticulously, through three dissents, how what was lonely “dissent” at one point, went onto became the common wisdom of another day. It is true that what is worth preserving must be preserved, but what about the rest? As one of the four judges said on Friday, “Look here, (when) something is going wrong, it should be questioned. If something is bad, it should be destroyed.”
Just by speaking out, even if it seemed awkward at that instant, the four judges have educated and alerted the nation. That is one thing Justice Khanna would have been proud of.