'Judges Should Lay Down Law In Continuum Irrespective Of Outcome Of Next Election': Justice Nariman

Justice Rohinton Fali Nariman, former Supreme Court Judge on Saturday observed that it is important for judges to lay down Constitutional law in continnum without being affected by the outcome of the next election. He also remarked about how dissent is very much alive in our Courts today. 

"The fact that we can write dissent today is a great matter, you finish one judgment and then there are three others. It is not that people don't dissent. Today the Supreme Court is a national Court of Appeal and not a Constitutional Court", Justice Nariman opined during the launch of his third book 'Discordant Notes- The Voice of Dissent in a Court of Last Resort'. The book is about the fate of dissenting judgments in the Supreme Court. 

On Saturday, a panel discussion was held during the book launch conducted by The Pratibha Khaitan Foundation comprising Justice BN Srikrishna, former Supreme Court Judge, Justice Gautam Patel of the Bombay High Court and Senior Advocate Darius Khambata. 

Justice Nariman mentioned during the book launch that he was incarcerated at his home for six weeks during the COVID pandemic which is when he had written the book. Then he went on to provide an overview of the book. 

"This book has two volumes. The first chapter deals with the need for dissent. It gives pros and cons for allowing and disallowing a dissent. Privy council advising the King used to give the advice in one voice. Thus dissent was not there till the late 1900's. Second is dissent and notable dissent which are notable right through world war I and II. Lord Atkin was there in World War I", Justice Nariman stated. 

He further spoke about how dissenting judgments often act as instruments of change. He referred to the dissenting judgments of Justice Fazl Ali and how two of his dissents became codified into laws later on by virtue of the first Constitutional Amendment.

Justice Nariman also spoke about instances of dissents which did not become law by referring to the dissenting judgment of Justice Sinha and Justice Bachawat in the Golaknath v. State of Punjab case. Justice Venkatachaliah's dissent in A.R Antulay v. R.S Nayak also finds a special mention in the book. 

He also mentioned that he has dedicated an entire chapter to four dissenting judges he calls, "The Four Horseman of the Apocalypse" consisting of Justice Fazal Ali, Justice Vivian Bose and the 'championing dissenter' Justice Subba Rao who had penned 53 dissents. 

Justice H.R Khanna's dissent at the height of the Emergency

Senior Advocate Darius Khambata during the panel discussion referred to Justice H.R Khanna's dissent in the ADM Jabalpur case at the height of the Emergency.

"Everyone's favorite dissent has to be Justice H.R Khanna's dissent at the height of the Emergency. Ability to stand up to his most powerful four colleagues in times of emergency. The New York Times at the time had run an editorial stating that every city in India should erect a statue of Justice Khanna", the senior counsel said. 

"It is a very important book because it tells us what judges are meant to be. Judges have to be courageous and they have to have integrity..Justice Rohinton has always etched his own path. He has personified what Justice Marshall said in 1803 in the Marbury v. Madison case that it is needed that judges at times do not agree", he further added. 

Today in our society dissent occupies a suspicious place 

Senior counsel Khambata observed that in today's society dissent occupies a suspicious place as it is perceived to be the same as a protest. "Dissent keeps the majority on their toes", he further added. 

Dissent reinstates faith in the independence of the judiciary 

Justice Patel observed that dissent reposes faith in the independence of the judiciary. He observed, "there is this concept of salvaging for tomorrow and the dissent as a testimonial character of the judiciary. The concepts are there in the book. It tells people that the judiciary is truly independent"

"It is not only the majority to fine tune the judgment it is also for the citizenry and for the people, if they have confidence that there are opposing voices discussing an issue thread bare that gives confidence to the system", senior counsel Khambata added. 

Dissent is akin to the Opposition in a Parliament 

"Dissent in a Constitutional judgment is akin to the Opposition in a Parliament. Can you imagine a Parliament without an Opposition", Justice Srikrishna remarked.

Justice Patel further added, "It is important for youngsters and law schools to realise that just because there is no precedent it does not mean that the proposition of law is wrong."

Dissent is necessary for the development of law 

Opining on the importance of dissent for the development of law, senior counsel Khambata remarked, 

"Judges bound by precedent can choose not to follow it. The law as we all know is as creative as any other. Can you imagine art, science literature stuck to the parameters and rules set up? It is like coming to the same conclusion, 10 years down the line"

"For sabarimala as a religious man i would have said no don't allow but as a judge i have to wear the robe of constitutional propriety and give a ruling based on law. Justo like Justice Nariman mentioned, you cannot make a vegetarian decide the butcher's case", Justice Srikrishna remarked. 

Every prophet was a dissenter 

"Every prophet was a dissenter, what is religion also without dissent?", senior counsel Khambata observed during the discussion. To this, Justice Srikrishna pointed out, "Gandhi was a dissenter".