COMMENTARY
that the free expression of dissent is
Dissenting Opinions of Judges
in the Supreme Court
Yogesh Pratap Singh, Afroz Alam, Akash Chandra Jauhari
This analysis of Supreme Court
judgments delivered from 1950
to 2014 looks at the dissenting
opinions expressed by judges.
It also examines if the presence
of the Chief Justice of India
on the bench diminishes the
possibility of dissenting. It lists
opinions which got recognition
in legislatures and the legal
academia and contributed
meaningfully to development of
law in India.
Yogesh Pratap Singh (yogeshpratap@gmail.
com) is at the School of Law, Glocal University,
Saharanpur; Afroz Alam (afrozalam2@gmail.
com) is at the Centre for Public Policy, Law
and Governance, National Law University,
Cuttack, Odisha; and Akash Chandra Jauhari
(acjauhari.12@gmail.com) is with the National
Law University, Odisha, Cuttack.
Economic & Political Weekly EPW JANUARY 30, 2016
E
mpirical works on the dissenting
opinions of judges in the Supreme
Court are fairly limited. This may
be attributed to the uncertainty of meth-
odology in collecting data and produc-
ing the most reliable results to under-
stand the pattern of judgment delivery
system in the Supreme Court. To over-
come this limitation, this article aims to
argue the case for an empirical study of
how judges exercise their legal acumen
to come to an independent conclusion
on disputes that affect the health of
Indian democracy. How free and capa-
ble is an individual judge in the bench to
express his/her democratic dissent? Is
the concurrence to “aristocratic consen-
suses” of the bench habitual? What is
the level of dissent across the bench over
the last six decades in the Supreme
Court? Which justices dissent more fre-
quently than others? Is there any regular
pattern of voting when the Chief Justice
of India (CJI) is a part of the bench?
What is the propensity of the judicial
dissent which got recognition and con-
tributed meaningfully to the develop-
ment of law? To substantially explore
these questions and empirically locate the
trends, we have collected and analysed
the Supreme Court’s judgments delivered
from 1950 to 2014 using the source of
All India Reporters (AIR) and Supreme
Court Cases (SCC).
Dissenting Opinions
The value of free speech and expression
gets strengthened when judges capably
use it to arrive at opinions that are
informed, effective and judicious. On
many occasions we see positive out-
comes of these dissenting opinions on
reforming the law and correcting errors
of the majority opinion in the judg-
ments. However, in the judgment deli-
very system of India, our judges either
concur or supplement the majority
opinions in most cases. It does not mean
vol lI no 5
non-existent but it is infrequent and
declining at an unusual speed. It is
clear when we look at Figures 1 and 2
(p 14) which provide general and
decadal rate of dissent respectively in
the Supreme Court.
The phenomenal decline in expressing
dissenting opinions raises many ques-
tions about the credibility of the institu-
tion. Our observations of the trend are
as follows:
(1) Figures 1 and 2 suggest that in the
first two decades the rate of dissent and
number of dissents were relatively good.
This was particularly so during 1961–70
which gave us the highest rate of dissent.
In this phase, we witnessed some great
dissenters like Justices A K Sarkar,
K Subba Rao, Hidayatullah, J C Shah,
J R Mudholkar, Vivian Bose and J L Kapur,
to name a few.
(1.1) The sudden decline in the rate of
dissent in the third decade perhaps indi-
cates that the judiciary was overshad-
owed either by external forces (the gov-
ernment) or by internal forces (influence
of the CJI). This was the time when Indira
Gandhi came into power and the judicial
appointments were heavily politicised.
However, an 11-judge bench constituted
at the beginning of the penultimate
decade snatched the power of appoint-
ment from the government and gave it
to a collegium system. But the collegium
system failed to bring qualitative changes
in the judgment delivery of the Supreme
Court despite getting autonomy in the
appointment of judges. On the one hand
it did not bring any improvement in the
quality of judgments and on the other, the
velocity of dissent instead of improving
seriously declined.
(1.2) The present trend of phenomenal
increase in the constitution of two-judge
benches by the Supreme Court is more
alarming because it further reduces the
possibility of dissent.
(1.3) Finally, the rising workload of
judges may also be responsible for the
decline of disagreement in the bench.
The strength of the Supreme Court is
nowhere proportional to the rising
workload of cases.1 Today the object of
the bench is to dispose of the matter and
not focus on the quality of judgment.
13
COMMENTARY
Figure 1: Trend of Dissenting Opinions in the Supreme Court 10.97%. In the initial years of this decade,
1,800
the rate of dissent was 31.25% in 1950,
1,600
31.42% in 1951 and 17.24% in 1952. This
1,400 trend was almost similar in the second
1,200 decade where the rate of expressing dis-
1,000 sent in the CJI bench was found to be
800 10.60% (out of total 849 CJI benches, dis-
Total no of reported cases
600 sents were recorded in 90).3 In 1961 the
400 rate of dissent was highest, that is, 22.9%
200
Total no of dissenting opinion and lowest, that is, 3.57% in 1969. How-
0
ever, during 1971–80, surprisingly the rate
of dissent decreased4 significantly up to
1950

1953

1956

1959

1962

1965

1968

1971

1974

1977

1980

1983

1986

1989

1992

1995

1998

2001

2004

2007

2010

2013
4.22% (highest 10.52% in 1980, 10.20% in
Figure 2: Decade-wise Rate of Dissent in the Supreme Court 1978 and lowest at 1.27% was recorded in
10,000 1976). This decline continued during 1981–
9,000 8867 90 and the rate of dissent was recorded at
8,000 4.07% (no dissent was recorded in 1986).
Total no of reported cases 7703
7,000 In the past two decades (1991–2000
6,000 and 2001–10) the rate of disagreement
5288 5020
5,000 in benches with the CJI has gone down
4520
4,000 further to 1.72% and 2.70% respectively.
3892
3,000 In 1996, 2000, 2001, 2009 and 2010, not
2144
2,000 a single dissent was recorded in the CJI
Total no of dissenting opinion
1,000 benches. No dissents have been record-
0 ed from 2011 to 2014 so far in any of the
1950–60 1961–70 1971–80 1981–90 1991–2000 2001–10 2011–14
benches with the CJI.
Figure 3: Dissent in CJI Benches The present declining rate of dissent
2,000
in the Supreme Court decision-making
Numbers of dissents as chief justice’s branches
1,500 when the CJI is a part of the bench is also
Total no of benches with chief justice of India disquieting. Our observations of this
1,000
trend are as follows:
Total no of reported cases
500 (1) Some of the chief justices were able
to create a democratic ambience in the
0
bench where other judges felt comfort-
1950

1954

1958

1962

1966

1970

1974

1978

1982

1986

1990

1994

1998

2002

2006

2010

2014

able to express disagreement and hence

Figure 4: Decade-wise Dissent in CJIs Benches the dissent rate was high, that is, in first
1,200
Number of unanimous decisions
two decades and mainly in 1951, 1952 and
Total no of benches with chief justice of India
1,000
1953.5 Justice S B Sinha, argues that
971
Number of dissents with CJI in bench 1,025 “Dissent means existence of democracy.”
800
749 He said, “Dissent means expression of own
759
600
opinion by the judge. It does not affect
511 494 the verdict. If dissent is not allowed, it
400 means judiciary is not free.”6
200 (2) Looking at the last two decades when
132 the velocity of dissent was found at its
0
1950–60 1961–70 1971–80 1981–90 1991–2000 2001–10 2011–14 lowest, we are forced to think that dem-
ocratic elements were lost in this period
This approach is not justified in the Chief Justice’s Bench and judges were not allowed to dissent.
light of a very old common law princi- It is generally observed that the rate of In 1996, 2000, 2001, 2009 and 2010, not
ple that “justice should not only be dissent has been very low when the CJI a single dissent was recorded in the CJI
done it must seen to be done.” The eco- himself is part of the bench over the benches. This trend continues in the
nomic theory of judicial behaviour also last 65 years (Figure 3). It is also surpris- present decade also.
predicts that a decline in the judicial ing that no CJI has expressed dissenting The following could be the possible
workload would lower the opportunity opinions. reasons for the absence of such dissent:
cost of dissenting and increase the In the very first decade, we found the (a) It may be the presence of the CJI
frequency of dissent.2 rate of dissent in benches with the CJI was which restricts indirectly/directly other
14 JANUARY 30, 2016 vol lI no 5 EPW Economic & Political Weekly
 COMMENTARY

Figure 5: Leading Dissenters in the Supreme Court authority of the law in a society governed
60
by the rule of law. Dissenting from the
50 majority opinion, he supported the view
49 48
40 that the Presidential order of 27 June
34
30 35
26
1975 and the maintainability of the
20
16 19 habeas corpus petitions proceed on a
13 11
10
8 7 6
different plane and one should not affect
6 6 8 7 5 6 6 7 5
0 the other. Further, he held that the legality
Justice Fazl Ali

Justice M C Mahajan

Justice S R Das

Justice A K Sarkar

Justice J L Kapur

Justice K Subba Rao

Justice J C Shah

Justice J S

Justice H R Khanna

Justice A N Ray

Justice A M Aalunadi
Justice Jagannadha

Justice Vivian Bose

Justice Hidaytullah

Justice Mathew

Justice M M Punchhi

Justice S B Sinha
Justice Raghubar

Justice Ramaswamy
of the detention orders was open to
question and such petitions were main-
tainable despite that order.

(2) Dissenting Opinions Recognised by

brother judges from expressing their Brennan or about Justice Michael Kirby Subsequent Benches of the Supreme
disagreement in the bench.7 and Justice Khanna and see their impact Court: The first case in this category
(b) It is also possible that as the CJI has on the legal system we cannot ignore was A K Gopalan v State of Madras, AIR
administrative powers vested in him8 their ability to write good and strong 1950 SC 27. In this case the dissenting
specifically power to constitute benches, dissent notes. opinion of Justice Fazl Ali was recog-
he is in a position to influence his brother (2) Dissent is not prohibited but the envi- nised later in Maneka Gandhi v Union of
judges not to raise questions regarding ronment in which it can occur is probably India which overruled the majority
his judgment or perhaps, he constitutes lacking in recent times. Data suggest opinion of Gopalan and held that any
benches of like-minded judges where that this decline started in the third law which deprives a person of personal
the possibility of dissent is diminished decade, which was known for the “impact liberty under Article 21 should satisfy
considerably. Hence the possibility of and influence” of Indira Gandhi on the requirement of Article 19. The Court
“bench hunting” cannot be denied. all institutions, including judiciary. She also accepted the influence of the due
openly declared that she “wants com- process doctrine in Indian constitutional
Leading Dissenters mitted judges.” jurisprudence and that any procedure
The Supreme Court has had some famous must be “fair, just and reasonable.”
dissenters who despite difficulties pre- Judicial Dissent Another case in this category was the
ferred to express their disagreement. For A judge who writes a dissenting opinion dissenting opinion delivered by Justice
instance, the one possible reason behind contributes to the existing legal knowl- Subba Rao in Radheyshyam Khare v The
the high rate of dissent in 1950, 1951 and edge and advances the possibility of the State of Madhya Pradesh, AIR 1959 SC 107
1952 was the presence of one such judge, legislature, judges and legal academia which laid down the premise of the law
Justice Fazl Ali, who was known for his accepting his dissenting reasoning. We relating to principles of natural justice
dissenting opinions.9 Similarly, Justice have classified the famous dissenting in the case of administrative bodies
A K Sarkar and Justice K Subba Rao opinions of the Supreme Court which and was subsequently recognised. The
made their presence felt in the legal have gained recognition. Supreme Court in A K Kraipak v Union
academia through their dissenting of India, AIR 1970 SC 150 held that the
opinions which is clearly visible in the (1) Dissenting Opinons That Were distinction between quasi-judicial func-
data of years 1961,10 1962,11 196312 and Recognised by the Legislature: The tion and administrative function had
1964. Justice Hidaytullah and Justice first case in this category was the New become quite thin and was being gradu-
J C Shah also contributed to this high Maneck Spinning v Textile Labour, AIR ally obliterated. Therefore, if the action
rate of dissent. It would be pertinent to 1961 SC 867. In this case, the dissenting of an authority affects the rights or the
mention that Justice Sarkar made the opinion of Justice Subba Rao laid the interests of a person, he must be heard.
maximum number of dissents (49 dis- foundation of the Payment of Bonus Act, Thus, even before, Ridge v Baldwin, 1964
senting opinions) (Figure 5). 1965. His line of argument that minimum AC 40, State of Orissa v Dr Binapani Dei,
We made the following observations bonus irrespective of profit or loss of
while looking at the data on the leading employer should be paid also gained ac-
dissenters of the Supreme Court: ceptance. The second was ADM Jabalpur
(1) The dissenting opinion displays a v Shivakant Shukla, AIR 1976 SC 1207. available at
different insight, logic, craftsmanship, Justice H R Khanna delivered his famous Delhi Magazine Distributors
or some other similar quality which dissenting opinion which argued that Pvt Ltd
cumulatively contribute to the reputation Article 21 is not the sole repository of the 110, Bangla Sahib Marg
of a judge. When we read about judicial right to life and personal liberty, and New Delhi 110 001
giants like Justice Marshall, Justice that such a right cannot be taken away Ph: 41561062/63
Holmes, Justice Learned Hand, Justice under any circumstances without the
Economic & Political Weekly EPW JANUARY 30, 2016 vol lI no 5 15
COMMENTARY

and Kraipak, Justice Subba Rao antici-
pated the correct law on the point and
observed in his dissenting note in
Radheshyam case that the concept of a
judicial act has been conceived and
developed by the English judges with a
view to keep administrative tribunals
and authorities within bounds. Unless,
the said concept is broadly and liberally
interpreted, the object will be defeated,
that is, the power of judicial review will
become innocuous and ineffective.
(3) Dissenting Opinons Which Re-
ceived Appreciation from the Legal
Academia: Under this category we place
the dissenting opinion of Justice Subba
Rao in M S M Sharma v S K Sinha where-
in he observed that privileges are still
archaic, uncertain and repressive and
therefore cannot be given overriding ef-
fect over fundamental rights. In Naresh
Shridhar Mirajkar v State of Maharashtra,
Justice Hidaytullah’s dissent raised doubts
about the majority. He observed that
fundamental rights may be violated by
the judiciary and hence any judicial
action should also be amenable to writ
jurisdiction. There are a few other pro-
nouncements,13 appreciation of which
can be classified under this category.
Conclusions
We can safely argue that difference of
Parliament cannot change or destroy the
“basic structure” of the Constitution. The
doctrine of “basic structure” once men-
tioned by Justice Mudholkar in the Saj-
jan Singh case became formalised with
Keshvanand Bharati v State of Kerala. It can
be argued here beyond any doubt that
the development of the basic structure
principle in India is the result of disagree-
ment, which started in the Sajjan Singh
case. Dissenting opinions are vindicated
because the social, economic, or political
environment changes. But the decline in
the number of dissenting opinions in
the Supreme Court does not bode well.
Notes
1 Originally, under Article 124(1), the strength
of the Court was fi xed at eight, including the
chief justice. However, the Constitution gives
power to the Parliament to increase the num-
ber of judges. In exercise of this power under
Article 124(1) Parliament passed the Supreme
Court (Number of Judges) Act, 1956 which
was amended in 1977 and again in 1986 pro-
gressively to increase the number to 25. See
M P Jain, 2009, Indian Constitutional Law,
LexisNexis Butterworth’s Wadhwa, p 192.
2 Lee Epstein, William M Landes and Richard A
Posner, “Why (and When) Judges Dissent: A
Theoretical and Empirical Analysis” (20 January
2010). U of Chicago Law & Economics, Olin
Working Paper No 510, available at SSRN:
http://ssrn.com/abstract=1542834, accessed on
19 January 2016.
3 During 1950 to 1960, 89% cases were decided
unanimously and this trend continued in the
subsequent decade (1961–70).
4 During 1971–80, surprisingly the rate of unani-
mous decisions increased significantly up to 96%
and in the last two decades it reached 98%.
5 During this period Indian Supreme Court was
blessed with some democratic chief justices
who created the ambience where dissent was
flourished viz, Justice H J Kania, Justice Patanjali
Shastri, Justice M C Mahajan, and Justice
B K Mukherjee, etc.
6 See, “Dissent among Judges Is Healthy: Former SC
Judge,” available at: http://articles.timesofindia.
indiatimes.com/2011-02-15/pune/ 28546316_1_
sc-judge-retired-supreme-court-judge-dissent.
7 This has happened in the Supreme Court of the
United States. During the tenure of Chief Jus-
tice Marshall the rate of dissent was minimum
because the brother judges in the bench along
with him were influenced by his leadership and
oratory qualities.
8 Practically there is no check on the powers of
the CJI.
9 His dissenting opinions in A K Gopalan v State
of Madras, Romesh Thaper v State of Madras
and Brij Bhusan v State of Delhi are quite
famous among the legal fraternity.
10 22.9% dissent rate was recorded in 1961.
11 11.76% dissent rate was recorded in 1961.
12 15.9% dissent rate was recorded in 1961.
13 See dissenting opinion of Justice Bhagwti in
Bhachan Singh v State of Punjab, AIR 1980 898,
dissenting opinion of Justice A M Ahmadi and
Justice M M Punchhi in Supreme Court Advo-
cates on Record Association v Union of India,
AIR 1994 SC 268, dissenting opinion of Justice
Ruma Pal and Justice S M Quadri in TMA Pai
Foundation v Union of India, AIR 2003 SC 355,
dissenting view of Justice S B Sinha and Justice
S N Variava in Zee Telefilms Ltd Union of India,
AIR 2005 SC 2677 and dissent of Justice
Dalveer Bahdari in Ashok Kumar Thakur v
Union of India, (2008) 6 SCC 1.
14 The Constitutional Validity of the 17th Consti-
tutional Amendment was challenged in the
Sajjan Singh v State of Rajasthan, AIR 1965
SC 845. Justice J S Mudholkar in this case first
time used the phrase “Basic Feature” of the
Constitution.
15 The same issue was again considered by a
eleven judge bench in famous I C Golak Nath v
State of Punjab, AIR 1967 SC 1643.
16 See the Constitution (Twenty Fourth Amend-
ment) Act, 1971.

opinions amongst judges is to be taken

as a healthy democratic trend which
eventually strengthens the entire legal
system. For example, it was the impact
of the doubts raised by the two learned
judges, Justice Hidayatullah and Justice
J S Mudholkar in Sajjan Singh v State of
Rajasthan14 that got the whole matter
referred to a larger bench of 11 judges,
that is, in Golak Nath v State of Punjab.15
It held that Parliament cannot amend
fundamental rights at all. This decision
of the Supreme Court forced Parliament
to amend the Constitution16 in order to
nullify the effect. Finally, the issue was
settled by a 13-judge bench in Keshvanand
Bharati v State of Kerala, AIR 1973 SC 1461,
which says that Parliament in exercise
of its constituent power under Article 368
of the Constitution can change, amend or
modify the Constitution, including the
chapter on fundamental rights. However
16
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