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.