Let’s Talk Law | The Comfort of Compliance And The Dignity of Dissent


Edited By: Pathikrit Sen Gupta

Last Updated: January 07, 2023, 12:28 IST

Justice BV Nagarathna. (File pic/ANI)

Justice BV Nagarathna. (File pic/ANI)

If historical past is something to go by, reform and alter are transcribed within the tone of dissent — whether or not it is on the eating tables of our properties or within the judicial pronouncement of the Supreme Court

Supreme Court’s Justice BV Nagarathna penned two essential dissenting opinions within the first week of 2023. One pertains to the case the place the SC upheld the procedural propriety across the demonetisation course of. The second is the case the place the highest court docket handled questions round hate speech and whether or not MPs, MLAs, and ministers ought to have some greater accountability. Justice Nagarathna dissented from the bulk in each these judgments in entire, and partly, respectively.

The decide argued that for demonetisation of 2016, the federal government must have introduced in laws, whereas within the case of controversial statements by politicians, she highlighted the necessity for better propriety and accountability. Mincing no phrases, she argued how hate speech strikes on the coronary heart of constitutional values.

Compliance and settlement with the bulk have their very own safety and luxury. That’s to not say it’s devoid of advantage. But dissent has a particular place. Dissent should be celebrated not as a result of it appears to be woke or in vogue, however as a result of its very existence factors to a thriving tradition of dialogue and variety of opinion. Moreover, dissent from a decide who’s all set to be the primary lady Chief Justice of India has particular significance. And when ladies who’re trailblazers, who smash the glass ceilings dissent, they declare their very own area in establishments which have been male bastions.

“Behind every successful man stands a great woman”— so goes an previous saying. Yet little consideration has been paid to the lives of the ladies who stood behind the justices, writes Ruth Bader Ginsburg within the ebook My Own Words. She highlights how ladies have been pillars behind the good judges (as their spouses) on the US Supreme Court, but their labour and contribution have by no means been documented.

For far too lengthy, ladies within the judiciary, like many different professions, have been behind the curtains. Toiling and contributing by way of their silent labour, constructing people and establishments brick by brick with their sweat and blood. So, each lady decide on the bench and each lady lawyer on the bar who select to voice their dissent, a various argument, or a divergent view from the bulk is an event to have a good time. Hence, Justice Nagarathna’s dissent is one to take severe notice of for the instances to return.

Celebrating or condemning judicial pronouncements on their advantage is a slippery slope. You clap for the court docket, or the decide involved when it fits you, or your political narrative. Or it’s possible you’ll name the judiciary a den of nepotism, ridden with flaws when it doesn’t fit your political inclination or your views. The constancy to pure regulation is uncommon and lacking from the discourse. So, whereas the opponents of the federal government would cling to the dissent in demonetisation and hail the decide for “taking over the federal government”, Justice Nagarathna has penned a judgement which is an argument for procedural propriety. The cheerleaders would vanish the moment any order from the judge seems to “favour” the federal government.

My argument right now is of pure dissent. Dissents from Justice Nagarathna appear to echo constitutional issues round process and propriety. And if historical past is something to go by, reform and alter are transcribed within the tone of dissent —whether or not it’s on the eating tables of our properties or within the judicial pronouncement of the Supreme Court. Justice Ginsburg wished to be a “diva”, as she loved opera. She was indeed one, in a different way though. A country like India, on the cusp of change and transformation, certainly needs more dissent from its “divas”.

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