DISSENT, whether of the public or judges, forms the bedrock of any democracy. In fact, some famous cases are known more for their dissenting opinions. One such case is that of ADM Jabalpur versus Shivakant Shukla.
Four judges of a five-judge Bench unanimously held against the enforcement of fundamental rights, including the right to live (Article 21), during a national emergency.
However, Justice H.R. Khanna, in his lone dissent, opined that Article 21 cannot be considered as a sole repository of the right to life. In other words, even if this Article were not part of the Indian Constitution, no one could deprive a person of his life and personal liberty.
“Sanctity of life and liberty was not something new when the Constitution was drafted. It represented a fact of higher values that mankind began to cherish in its evolution from a state of tooth and claw to a civilised existence.
Likewise, the principle that no one shall be deprived of life and liberty without the authority of law was not the gift of the Constitution. It was a necessary corollary of the concept relating to the sanctity of life and liberty; it existed and was in force before the coming into force of the Constitution,” Justice Khanna penned.
Subsequently, the 44th Amendment of the Indian Constitution provided a long-due relief and prohibited suspension of Article 20 (Protection in respect of conviction for offences) as well as Article 21.
Timeless cases such as these remind us that dissent is a beacon of hope and an important facet of a democratic country. The past year has also witnessed some of the lone and bold dissents that made their mark in the history of the Indian judiciary.
Starting from the Mineral Development Authority versus SAIL to the State of UP versus Lalta Prasad Vaish case, each dissenting opinion holds its unique importance. Three of such decisions were penned by women justices. This article aims to take the readers through all those decisions.
Mineral Area Development Authority versus M/S Steel Authority Of India & Ors.
The first one was in July when a nine-judge Bench decided whether the payment of royalty by a holder of a mining lease could be considered a tax. The Bench also decided whether state legislatures have the power to levy tax on mineral rights after the enactment of the Mines and Minerals (Regulations and Development) Act, 1957 (Act).
While eight out of nine judges held that royalty is not in the nature of tax; it is a contractual consideration and states do have the power to levy tax, Justice B.V. Nagarathna dissented.
She opined that royalty is in nature of a tax under Section 9 of the Act and not merely a contractual payment. The judge reasoned that though Entry 50 of the State List (within Schedule Seven of the Constitution) provides the power to levy taxes on mineral rights, the same is subject to the limitations imposed by the Parliament.
She added that this limitation is provided in Section 9 of the Act, which provides for the payment of a royalty by the holder of a mining lease. Pertinently, the Parliament draws its power to regulate mines and mineral development from Entry 54 of the Union List.
“Entry 50, List II envisages that Parliament can impose ‘any limitations’ on the legislative field created by that entry under a law relating to mineral development. The MMDR Act, 1957 has imposed the limitations as envisaged in Entry 50, List II in Sections 9, 9A and 25, etc., on the strength of Entry 54, List I.”
Apart from this, the dissenting judgment also upheld the seven-judge Bench decision in India Cement Ltd. versus State of Tamil Nadu, which held that royalty is a tax. Resultantly, it also overruled the later decision in State of West Bengal vs. Kesoram Industries Ltd, as it failed to follow the precedent set in India Cement on the basis of a “typographical error”.
Essentially, the Bench in Kesoram doubted the decision in India Cement and opined that there was a typographical error and the court instead meant that royalty is not a tax. To this, Justice Nagarathna, in her own bold way, went on to record in her opinion:
“Fourthly, in my view, the opinion of the majority in the Kesoram is per incuriam as it failed to follow the dictum in India Cement on the basis of a ‘typographical error’ in Paragraph 34 thereof where there was none.
“Judgments of larger Benches cannot be questioned by smaller Benches on the basis of an imagined ‘typographical error’! The entire judgment must be read and understood including its undercurrents before negating it for what it stands.”
State of Punjab And Ors. versus Davinder Singh And Ors.
This decision pertained to sub-classification within Scheduled Castes for reservation purposes. Justice Bela M. Trivedi adhered to a strict interpretation of constitutional provisions. In this case, while six out of seven judges permitted the sub-classification within Scheduled Castes, Justice Trivedi alone dissented.
The majority judgment reasoned that Schedule Castes are a heterogeneous class and the State can further classify the same provided there is a rational principle for differentiation and that principle has some nexus with the purpose of such classification.
However, the dissenting judgment upheld the precedent set in E.V. Chinnaiah versus State of Andhra Pradesh, wherein it was held that Scheduled Castes are instead a homogenous group and cannot be further sub-categorised. Justice Trivedi added that only the Parliament can make changes in the list of Scheduled Castes notified by the President by virtue of the power conferred under Article 341 of the Indian Constitution.
“The etymological and evolutionary history and the background of the nomenclature ‘Scheduled Castes’, coupled with the Presidential Orders published under Article 341 of the Constitution, make the ‘Scheduled Castes’ a homogenous class, which cannot be tinkered with by the States,’’ the judgment stated.
In Re: Section 6A Citizenship Act, 1955
Another judgment that joined the list of lone dissents was Section 6A of the Citizenship Act, 1955 decision. For context, Section 6A was inserted to give effect to the Assam Accord which was entered to essentially quell numerous protests held against migration from Bangladesh.
This Section was a gateway that conferred citizenship to migrants who entered Assam from Bangladesh after January 1, 1966, but before March 25, 1971.
It may be noted that immigrants who migrated before 1966 were already added to the electoral rolls prepared as of January 1, 1966. This was because the Union witnessed a significant influx of refugees between 1964 and 1965 and thus decided to register such persons as citizens.
Further, the reasoning behind the later date (March 25, 1971) was the launch of Operation Searchlight by Pakistan which also marked the onset of the Bangladesh Liberation War. Following this, on the very next day, i.e., on March 26, Bangladesh declared Independence.
Four out of the five-judge Bench upheld the validity of the impugned Section. However, Justice J.B. Pardiwala opined that the Section has become unconstitutional due to the efflux of time. He referred to the doctrine of temporal unreasonableness which means that classification, reasonable during the enactment of law, has become unreasonable. Over the course of time, the classification does not hold a reasonable nexus with its purpose anymore.
“The underlying object behind the creation of two distinct categories of immigrants under Section 6A of the Citizenship Act could have been achieved only if the exercise of detection of the immigrants of the 1966-71 stream and their deletion from the electoral rolls was conducted in an en-masse and time-bound manner,” Justice Pardiwala explained.
After referring to the low detection rate of immigrants, the judge pointed out that Section 6A(3) requires the migrant to be first detected as a foreigner before registering as a citizen. However, he marked that only the State can conduct the detection process and the migrant cannot voluntarily declare himself as a foreigner.
This, he said, is a clear departure from the scheme of the Citizenship Act and Articles 6 and 7, which allow acquiring citizenship through registration. Thus, he declared Section 6A unconstitutional with prospective effect.
State of U.P. versus M/S. Lalta Prasad Vaish
The final case in our list of lone dissents pertains to the State’s power to regulate industrial alcohol. Entry 8 of the State List within Schedule Seven of the Constitution gives states the power to regulate intoxicating liquor. Based on this, eight out of the nine-judge Bench held that the term “intoxicating liquor” also includes industrial alcohol, affirming the state’s regulatory power.
The majority judgment explained that Entry 8 covers the production, manufacture, possession, transport, purchase as well as sale of intoxicating liquors. It adopted a wide interpretation of the entry and held that it covers all alcohol that could be prone to misuse.
In contrast, Justice Nagarathna categorically disagreed with the majority view and held that Entry 8 includes liquor made for human consumption and not industrial alcohol. Drawing strength from the Constituent Assembly debates, she stated that “there was a consumption-oriented meaning attached to intoxicating liquors”. She also observed that potential misuse cannot be a reason to stretch Entry 8 to include industrial alcohol.
“If we were to read ‘industrial alcohol’ as ‘intoxicating liquors’ which even though by design is neither supposed to be consumed nor have an effect on health but has the constituents that could be ‘intoxicating’ when misused, it would enable a cumbersome interpretational plane,’’ she reasoned.
However, she did agree that the state can legislate to ensure that non-potable alcohol is not misdirected to potable alcohol. Further, to bolster her reasoning, she also pointed out that the Industries (Development and Regulation) Act, 1951 (IDRA), allows the Parliament to take control of certain industries listed in its Schedule 1. Pertinently, the schedule lists “fermentation industries”, covering industrial alcohol and excluding intoxicating liquors from its ambit.
Consequently, only the Union has legislative competence to control fermentation industries.
The above reasoning was also observed in a seven-judge Bench decision in the Synthetics and Chemicals Ltd versus State of UP. It held that the fermentation industry is a scheduled industry controlled by the Union.
“Any interference with the said legal position would have a cascading effect on other scheduled industries, thereby giving legislative competence in respect of all scheduled industries to the states under Entry 33(a), List III. This would result in multiple states as well as the Union having powers to make laws which would lead to the scheduled industries under IDRA pale into insignificance.’’
Moreover, the Synthetics case provided a distinction between the concepts of “intoxicating liquors” and “industrial alcohol”. This was the reason that while the majority judgment overruled the synthetics and chemicals case, Justice Nagarathna upheld it.
A concluding note
The above dissenting opinions are both intellectual as well as reasoned. Whether it is Justice Khanna’s historic dissent or the recent dissent of Justices Nagarathna, Trivedi and Pardiwala, each one of them reflects the willingness of the judge to challenge the majority view and instead pen down their own independent view.
The trajectory of landmark judgments is a testament to the fact that minority decisions hold as much significance as majority decisions. Who can say that there will not be any larger Bench constituted in the near future involving the same point of law potentially relying upon any of the dissenting opinions marked above? This is all to say that dissenting opinions are essential pillars of the Indian legal system.