TWO-DAYS NATIONAL WORKSHOP-CUM-CONFERENCE

On

“JUDICIAL DISSENT: A CONCEPTUAL AND CONTEXTUAL AUDIT OF DECISION MAKING IN THE SUPREME COURT OF INDIA”

(APRIL 04-05, 2015) Organized by GLOCAL LAW SCHOOL, SAHARANPUR, UTTAR PRADESH

in association with

RURAL LITIGATION & ENTITLEMENT KENDRA (RLEK), DEHRADUN

“If all mankind, minus one, were of one opinion, and only one person were of the contrary opinion, mankind would no more be justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.” -----John Stuart Mill THE GLOCAL INITIATIVE

Dear colleagues Glocal Law School, warmly welcomes the dignitaries from bar, bench, legal academia, students, researchers and experts of judicial studies for the National Conference on “Judicial Dissent: A Conceptual and Contextual Audit of the Decision Making in the Supreme Court of India”. This initiative of Glocal Law School focuses on the role of the judiciary in constitutional transitions, and commences with a “framing workshop-cum-conference” to provide in-depth discussion of key issues, experience sharing between various stakeholders, a discussion paper and the framework for a research and/or training and technical assistance programme designed to enhance the rule of law in new constitutional frameworks through strengthening the role of the judiciary. WORKSHOP-CUM-CONFERENCE: RATIONALE & SCOPE John Stuart Mill was of the view that even ‘if a person finds himself alone in expressing his opinion, he should, according to him, be free to express it, as it is the hallmark of the inquisitive spirit of mankind. If the opinion is true then by suppressing it humanity is deprived of the truth and will not progress. If the opinion is false then humanity again loses, because if the opinion is false it will be shown to be so, but its expression is useful, for it forces us to restate the reasons for our beliefs. Mill brings to light a remarkable phenomenon, though uncommon called ‘dissent’, i.e., ‘to differ in opinion or feelings’ or ‘to disagree.’

The ability of a judge to write an opinion which rejects the reasoning of his colleagues and explains how the majority has fallen into error is one of the key indicators of a robust and independent judicial system. A committed judiciary firmly in the grip of another arm of government might not need a mechanism for the airing of disagreement. Conversely, the strong tradition of independent expression which the possibility of dissent clearly emphasises, poses a real obstacle to those who might intend to intimidate the institution of judiciary. In this regard Justice Douglas of the US Supreme Court dramatically argued: Certainty and unanimity in the law are possible both under the fascist and communist systems. They are not only possible; they are indispensable; for complete subservience to the political regime is a sine qua non to judicial survival under either system. One cannot imagine the courts of Hitler engaged in a public debate over the principles of Der Führer, with a minority of one or four deploring or denouncing the principles themselves. One cannot imagine a judge of a communist court dissenting against the decrees of the Kremlin. Hence, the possibility of dissenting judgment is one factor which provides reassurance that the courts are staffed by independent judges beholden only to their own individual appreciation of the constitution and the law. If the judges are prepared to disagree with each other on occasions, then it seems reasonable to presume that they can take stand against the executive and legislature with constitutionally limited powers when needed. The dissenting opinion thus enjoys a truly distinctive, even paradoxical, institutional status.

While the significance of the dissenting opinion has received various forms of tacit acknowledgment over the years — particularly in the United States, where it has long held a peculiar romantic fascination — until recently, serious regard had not been given to this important aspect of judge-made law. The Constitution of India realizing the essence and relevance of dissent made this right of ‘dissent’ available to our judges [See Article 145]. We cherish judges like Justice A. K. Sarkar and Justice Subba Rao, who happened to be the persistent dissenters but others, like Justice Fazl Ali, Justice H. R. Khanna and in contemporary times Justice S.B. Sinha also achieved strong rates of disagreement. The first dissenting opinion in the Supreme Court was recorded in famous A. K. Gopalan v. State of Madras (AIR 1950 SC 27), when Justice Fazl Ali expressed his inability to accept the narrow interpretation of Article 21 and gave a progressive interpretation, which was accepted by the Supreme Court after twenty- eight years in Maneka Gandhi v. Union of India (AIR 1976 SC 1207). Similarly, Justice H.R. Khanna’s dissenting opinion in infamous Habeas Corpus case (AIR 1976 SC 1207), and Justice Subba Rao’s dissenting opinion in Radhey Shyam Khare v. The State of Madhya Pradesh (AIR 1959 SC 107) was too appreciated for its creativity and progressive nature. Where, on one hand The New York Times applauded Justice Khanna for his great dissenting opinion, Justice Subba Rao’s dissent came much before the historic pronouncement of House of Lords in Ridge v. Baldwin ([1964] AC 40) where the House of Lords overturned a thirty year old precedent and declared that power of dismissal of an employee cannot be exercised without giving reasonable opportunity of being heard and without observing principles of natural justice. It was Justice Subba Rao’s dissent in Radhey Shyam Khare v. The State of Madhya Pradesh which influenced the House of Lords in Ridge v. Baldwin. Undoubtedly, the dissenting opinions in India have been very creative and progressive. But in the last two decades velocity of dissent was found at its lowest level. This trend is certainly creating doubts either in terms of democratic decline of judiciary per se or judges themselves are not allowed to express dissent. Furthermore, the abysmal rate of dissent in Chief Justice of India (CJI) benches is also an alarming trend. Is it the persona of Chief Justice of India which restricts indirectly/directly other brother judges to express his/her disagreement in the bench or the fact that Chief Justice has a lot of administrative powers vested in him specifically the power to constitute benches where he is in position to influence his brother judges not to raise question mark on his judgment or he constitutes benches of likeminded judges where possibility of dissent becomes almost zilch? These are questions which raise the possibility of bench hunting that cannot be copiously denied.

This trend is certainly disquieting and it is duty of all who are part of this legal system to express their dissent and raise voice against this trend. We are reminded of the great scientist Albert Einstein who said:

“If I were to remain silent, I'd be guilty of complicity.”

THE FRAMING OF WORKSHOP-CUM-CONFERENCE: OBJECTIVES The focus on the institution of the courts is explicable. As an active participant in guarding the new constitutional order, the judiciary has a key role in ensuring the new constraints on power established by the Constitution are upheld, and that a new culture for constitutionalism is allowed to develop. However it would be conceivable only when that ambience is created within the institution where judges are independent and free to decide issues only on the basis of law and facts. In this backdrop, this workshop-cum-conference is organised with following objectives:  Bringing together the bar, bench, legal academia, researchers and experts from different aspects of judicial study to deliberate on the role of judges and various other stakeholders in this phase of constitutional transitions.  Providing forum for stock-taking, analytic exercise and an opportunity to discuss the contemporary erosion of dissenting opinions in the decision making of the Supreme Court.  Framing a programmatic response based on the lessons learned from our own past experiences and the global trend of judicial decision making processes.  Contribute meaningfully to the overall dissenting framework of the judiciary to strengthen the legal system of India.

THE SURVEY OF MAJOR THEMES A survey of issues affecting the judicial institution, its process of decision making and its ability to strengthen the rule of law results in the following selection of recurring issues which will form the focus for discussions at the workshop:

[1]. Judicial Independence, Dissent and Constitutionalism: Conceptual Framework The possibility of dissenting judgments is one factor which provides reassurance that the courts are staffed by independent judges beholden only to their own individual appreciation of the constitution and the law. If the judges are prepared to disagree with each other on occasions, then it seems reasonable to presume that they can take stand against the executive and legislature within constitutionally limited powers when needed. A constitution is the ultimate expression of the popular will, and it is the judiciary’s responsibility to enforce that popular will when it is violated by legislation that is contrary to the constitution. This requires a judiciary, which is independent from any executive, legislature or other manipulations, keeping itself though within four walls of the constitution. Confab Questions: o A clear perspective of a normative constitution; o The relationship of constitutionalism with judicial dissent; and o The relationship of judicial dissent with the overreaching principle of judicial independence. [2]. Genealogy of Judicial Dissent: Global Experience The study of history is imperative because it helps us to understand the present. If we will listen to what history has to say, we can come to a sound understanding of the past that will tell us much about the problems we now face. If we refuse to listen to history, we will find ourselves fabricating a past that reinforces our understanding of current problems. "We study the past to understand the present; we understand the present to guide the future." The history of judicial dissent, because there exists a demonstrable nexus between institutional practice — here, the speech act — and institutional purpose, which includes the court’s political and jurisprudential, ends. Confab Questions: o Origin, development and justification of practice of dissent in England; o Espousal and alteration in the practice of dissent in the United States of America;

[3]. Why Do Judges Dissent? On Supreme Court decision-making political scientists generally investigate two pertinent questions: How should judges decide? and how do judges decide? Some scholars focus on the first, jurisprudential, question and discuss such issues as the nature of legal reasoning and the justices’ responsibility to the law. Other scholars focus on the second, behavioural, question, and discuss such issues as what variables actually influence the decisions of justices. It is commonly thought that the answer to the second, behavioural, question is entirely independent of the answer to the first, jurisprudential, question. Confab Questions: o Why do judges dissent in the court? o What are the factors that affect the behaviour of the judge in the court? o Whether judges act as strategic actors? What other considerations needs to be taken into account in determining strategy (e.g, focus of judicial action on administrative law, rights adjudication, corruption or other?) o What different strategic approaches have been used by the Supreme Court of India?

[4]. Culture of Dissent in the Indian Supreme Court: Past & present

Dissenting opinions have played a great role in the development of American Jurisprudence by its effect on laws enacted by the Congress. For instance, the dissenting opinion of Justice Iredell in Chisholm v. Georgia [2 U.S. 419 (1793)] was incorporated in the eleventh amendment to the Federal Constitution and hence became ultimate law of the land. Similarly, dissenting opinion of Jesse W Carter in Zaragosa v. Craven [02 P.2d 73 (1949)] became influential in securing an amendment to a section of the civil code having to do with the community or separate character of a recovery of damages for personal injuries received by a married woman. While going through the history of Indian Supreme Court, we find that some judicial dissents were able to ensure a change in old laws and many of the dissents of Justice Fazl Ali and Subba Rao and Hans Raj Khanna are now accepted as correct interpretation of law. However, the recent trend shows that there is a decline in the dissent. Confab Questions:

o Rate of dissent in past and present in the Supreme Court. o It appears that there is decline in the dissent. If it is so then what are the factors which are contributing in this trend.

[5]. Contribution of Dissenting Opinions of Supreme Court Judges in India

We have witnessed several landmark cases which are known more for their dissenting opinions rather than the majority views. In the light of these cases the workshop will effort to analyse real impact and contribution of the dissenting opinions on the growth of future law the dissenting opinions which received lot of appreciation were examined along with the majority views.

Confab Questions: O Whether dissenting opinions contributed to the growth of law in India? O Whether dissenting opinions could ever receive the recognition of the legislature? O Rate of approval of dissenting opinion by subsequent benches of the Supreme Court.

GUIDELINES FOR PAPER SUBMISSION The programme committee solicits original research papers from the bar, bench, legal academia, students, researchers and experts from different aspects of judicial study on any of the sub- themes to be considered for presentation at the conference and publication afterwards in the form of an edited book. Each participant is required to submit an abstract on any one of the six tracks above and can choose the specific issue within the selected track to discuss. The abstracts must be of 500 words and should clearly identify the issue they are dealing with, and the argument that they seek to put forward. The conference follows a very strict policy on plagiarism and runs all submissions through plagiarism detection software.

The deadline for the submission of abstracts is February 28, 2015. The results will be declared after a very strict review process by March 5, 2014. Following this, the selected authors will have to submit their final papers (word limit of 7500 words) by March 28, 2015. All the papers

will also be subject to review by the papers committee and may be rejected on content, suitability, being off the theme, poor quality, plagiarism and program scheduling requirements.

 Only original, unpublished work will be accepted for the conference.  Papers should reflect the conference themes. The major themes of the conference are as follows: Judicial Independence, Dissent and Constitutionalism: Conceptual Framework; Genealogy of Judicial Dissent: Global Experience; Why Do Judges Dissent?; Culture of Dissent in the Indian Supreme Court: Past & present; and Contribution of Dissenting Opinions of Supreme Court Judges in India.  Abstract and the full paper need to be submitted for approval to the Paper Committee of the Conference by the date already announced.  Authors may submit their abstract and final paper as email attachment to [email protected] Please use the subject line as: "Submission of Abstract/Final Paper for National Workshop-cum-Conference on Judicial Dissent".  The structure of the paper will be as follows:  Title of the paper - title should be concise and expressive of the content; a sub- title may be added if required  Name/s of author/s, Institution address, email, and phone/fax numbers  Abstract not exceeding 500 words with at least 5 key words  Body of the paper  References (Harvard Blue Book 19th Ed. Style)  The abstract (max. 500 words) and final paper (max. 7500 words) should be in MS Word 2007 format with 1.5 line spacing, 12 font size in Times New Roman, justified alignment, 1.5 line spacing and 1 inch margin on all the sides of A4 size paper.  The authors should follow Harvard Blue Book 19th Ed. footnoting Style, in Times New Roman and with font size 10 and 1 line spacing.  The word limit of the final paper is inclusive of Tables and Figures which may be incorporated into the text of paper as close to where they are first referred.  If there are more than one author, registration is compulsory for all authors. At least one Author is required to present the paper in person at the conference.

REGISTRATION DETAILS Participation Fees: INR 500 per participant for academicians and industry delegates. The fees include admission to all Technical Sessions, meals (breakfast and lunch on both the days. Accommodation and local hospitality will be arranged by the University.

IMPORTANT DATES

Last Date for Abstract Submission March 15, 2015 Acceptance of Abstract March 16, 2015 Full Paper Submission and Registration for Conference March 28, 2015 Date of Conference April 04-05, 2015

ABOUT GLOCAL UNIVERSITY The Glocal University is established by the Uttar Pradesh Private Universities Act, 2011 (UP Act no. 2 of 2012) and recognized by UGC under Section 2(f) of UGC Act 1956. With sprawling 300 acre campus, Glocal University is gorgeously located in the foothills of the Shivalik range at Mirzapore Pole, Saharanpur which not only present a picturesque view for all but also strategically connects Uttar Pradesh with three states, namely Uttarakhand, Himachal Pradesh and Haryana. The University aims to provide world-class education with local relevance and high degree of moral values. The Glocal University with five major schools namely School of Technology, Law School, School of Pharmacy, School of Business and Commerce, and School of Life and Allied Health Science offers wide range of Undergraduate, Postgraduate and professional courses to its students. The cross-disciplinary learning with well-structured syllabus offers great flexibility to its students to craft not only his/her own career but also emerge as leader in the competitive job market. The dynamic and experienced pool of faculty with international exposure and industry experience really makes the University proud. The Glocal University provides best state-of-art infrastructure like fully equipped library and laboratories, 24x7 wi-fi enabled campus, audio-visual enabled air-conditioned class rooms, single bedded hostel rooms etc to facilitate the learning process. The University is especially equipped with the latest in security infrastructure, 24 hour surveillance, highest degree of safety particularly for women and a protected campus that is peaceful and ragging free. For more information please visit http://www.theglocaluniversity.in.

ABOUT GLOCAL LAW SCHOOL (GLS) Recognised by the Bar Council of India, the Glocal Law School (GLS) is the young and promising institutions of legal education in India. GLS aims to provide multidimensional learning experiences which integrate rigorous academic, applied, practical and cross-disciplinary perspectives to ensure a deep understanding of law in all its contexts. Backed by young and dynamic faculty, excellent academic and co-curricular facilities, GLS boasts of an educational environment with a touch of world class. We aim to nurture quality legal research by establishing conditions most appropriate for incubating scholarly activity. To support our social concerns, we have adopted a multi-pronged strategy to sharpen the tool of law as an effective means for social change by helping those who are poor and needy. The distinctly hospitable learning environment of GLS offers safe and informal surroundings with an enjoyable experience of living away from home. GLS offers an innovative and distinctive undergraduate programme of studies relevant to today’s society. These programmes are five-year integrated B.A.LL.B and B.B.A.LL.B. Our integrated approach to teaching provides several course options, whereby a student of B.A.LL.B.(Hons.) can study some elementary courses of Business Administration or may opt for an appropriate mix of Liberal Art Courses. Similarly a student of B.B.A.LL.B.(Hons.) can take elementary papers of liberal arts. School also proposes to offer specialization at undergraduate level in “Corporate Laws, Intellectual Property Laws, Taxation Laws, Criminal Laws, Constitutional Law and International Trade Law.

Glocal School of Law is privileged to have the dynamic and encouraging guidance of Prof. Faizan Mustafa, Vice-Chancellor, NALSAR University of Law, Hyderabad, who regularly conducts classes and supervises our other academic activities. Professor (Dr) V. Nagaraj, former Registrar National Law School of India University (NLSIU), Bangalore and former Vice- Chancellor, National Law University, Odisha, Prof. G.V. Ajappa, former Dean, Faculty of Law, Dharwad University and senior most professor of NLSIU, Bangalore, Prof. Gurjeet Singh, former Vice-Chancellor, Rajiv Gandhi National Law University, Patiala, and Mr. Krishan Mahajan, Senior Advocate Supreme Court of India and senior journalist are also part of our advisory board. ORGANISING COMMITTEE Chief Patron Patron Organising Secretary Co-convenor Prof. Sitharam Kakrala Mr. Awdhash Kaushal (Convenor) Dr. Afroz Alam Vice-Chancellor Chairman Dr. Yogesh Pratap Singh Asso. Professor of The Glocal University RLEK, Dehradun Head, Glocal Law School Political Science Head, Paper Review Sub-committee Head, Logistics Sub-committee Head, Hospitality Sub-committee Mr. Khalid Anis Ansari Mr. Ayaz Ahmad Mr. Amitra S. Chakraborty Asst. Professor of Sociology Asst. Professor of Law Asst. Professor of Law CONTACT ADDRESS Dr. Yogesh Pratap Singh Dr. Afroz Alam Organising Secretary (Convenor) of the Conference Co-Convenor of the Conference Glocal Law School (GLS) Glocal Law School (GLS) Mobile No. +91 8392939345 Mobile No. +91 9438303041 E-mail: [email protected], E-mail: [email protected]

Address: Glocal University, Delhi-Yamunotri Marg (State Highway 57), Mirzapur Pole, Distt. Saharanpur-247122-Uttar Pradesh

The University is approximately one and half hour drive from the Jolly Grant Airport, Dehradun and one hour drive from Saharanpur Railway Station.