Dissent in Democracies
Dissent is a key feature of a healthy democracy, seen in citizens, lawmakers, and judges.
Both India and the U.S. have prominent judicial dissents, though their reasons and contexts differ.
Dissent in the U.S. Supreme Court (SCOTUS)
U.S. judges are appointed by the President and their dissents often reflect political leanings. For example:
Justice Breyer (Democrat appointee): Pro-affirmative action, pro-abortion, against capital punishment.
Justice Alito (Republican appointee): Anti-abortion, anti-gay rights.
Example: In Obergefell v. Hodges (2015), Alito dissented, arguing the Constitution doesn’t guarantee the right for same-sex marriage.
Dissent in the Indian Supreme Court (SC)
Political Context: Indian judges are appointed through a collegium system, not by the ruling government, so their dissents are not directly politically motivated.
Case Examples:
ADM Jabalpur (1976): During the Emergency, the majority upheld the suspension of fundamental rights. (Suspension of Articles 21 and 226)
Justice H.R. Khanna dissented, emphasizing the protection of life and liberty, which later influenced constitutional changes.
P.V. Narasimha Rao (1998): Majority opinion granted immunity for bribery in Parliament, but Justices Agarwal and Anand dissented, a view that later became law in Sita Soren (2023).
Social and Cultural Dissent
Some dissents reflect different social or cultural perspectives.
Shayara Bano (2017): The majority struck down triple talaq (divorce in Islam) as unconstitutional, while Justices Khehar and Nazeer dissented, viewing it as part of personal law.
Aishat Shifa (2022): In the hijab case, Justice Gupta supported the State’s dress code based on secularism, while Justice Dhulia highlighted the constitutional values of diversity and tolerance.
Intellectual Dissent
Some dissents arise from purely legal or intellectual differences, rather than political or social contexts.
Lalta Prasad Vaish (2024): In a case about State vs. Centre’s power to tax industrial alcohol, Justice Nagarathna disagreed with the majority on the interpretation of "intoxicating liquor" in the Constitution, offering a strictly textual, intellectual critique.
COMMENTS