Lack Of Dissenting Judgement In Article 370 Case A Matter Of Regret: Senior Advocate Fali S Nariman

Renowned Senior Advocate Fali S Nariman on Friday (January 5) expressed regret over the absence of a dissenting judgment in the recent Supreme Court verdict on the abrogation of Article 370, emphasising the crucial role dissent plays in legal proceedings.

Nariman was speaking as the guest of honour at the 28th Justice Sunanda Bhandare Memorial Lecture on 'Role of the Judiciary in Empowerment of Indian Women' organised by Justice Sunanda Bhandare Foundation. The lecture was delivered by Justice BV Nagarathna, Supreme Court judge and poised to be the first woman chief justice of the Indian Supreme Court.

On December 11, a constitution bench comprising Chief Justice DY Chandrachud, and Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai and Surya Kant delivered the highly anticipated judgment in the Article 370 case, which was reserved in September after a sixteen-day-long hearing. In a significant win for the union government, the court unanimously validated its decision to revoke Jammu and Kashmir's special status under Article 370 of the Constitution in 2019. The court affirmed that the erstwhile state lacked internal sovereignty, and the state government's concurrence was unnecessary to apply the Indian Constitution.

Three separate opinions were pronounced in this case. The lead judgment was by Chief Justice DY Chandrachud, speaking for himself and Justices Gavai and Surya Kant. The second was a concurring opinion authored by Justice Sanjay Kishan Kaul. Justice Sanjiv Khanna, in a separate opinion, concurred with both judgments. While the concurring judgments highlighted certain aspects like the need for a truth and reconciliation committee, and the nature of the union government's power to convert a state into a union territory, no judge struck a dissenting chord. 

In his address today, Nariman lamented the absence of a dissent on the Kashmir issue. "On reading the exhaustive judgement by the five judges' bench, my regret has been that there was no dissent," he said. 

Although Nariman acknowledged that a dissenting opinion might not have altered the outcome of the case challenging the government's decision, he underscored its importance in aiding public comprehension of the complex and lengthy legal proceedings surrounding India's northernmost state. "A dissent would not have any difference to the outcome but better still it would have helped the not-so-well informed public to better understand the contours of a very long and complicated case of India's most northernmost state."

Commenting on the significance of dissenting judgments, Nariman noted that they serve not only as a safety valve but also send a positive message to the public regarding the robustness and effectiveness of the highest court -

"Yes, I do believe it is needed because often a dissent in a bench of judges, whether of three, five seven, or nine is not just a safety valve; it also sends a message of assurance to the ever curious and ever anxious general public that the highest court is in robust health and doing its allotted task well. It is also necessary to recall what an American judge once wisely said - a dissent may salvage for tomorrow, a legal principle that has been omitted or forgotten today."

In this connection, Nariman commended Justice Nagarathna for her ability to dissent on crucial matters, expressing admiration for her legal knowledge and her readiness to differ from her colleagues on the bench. Among Justice Nagarathna's notable dissents are her judgment refusing to uphold the union government's decision to demonetise high-value currency notes in October 2018 as legal, and the one in which she refused to agree with the majority view that fundamental rights under Articles 19 and 21 of the Constitution should be made horizontally applicable against non-state entities and private persons. In both these cases, Justice Nagarathna was the lone dissenting voice on a five-judge constitution bench.