Power of Dissent

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This article has been written by Navneet Chandra.

Dissent in its literal meaning is an opinion, philosophy or sentiment of non-agreement or opposition to a prevailing idea or policy enforced by a government, political party or other entity or individual in a capacity of contextual authority. A dissenting person may be referred to as a dissenter.

Powerful leaders encourage a culture of dissent, and seek to create a workplace where radical candour is appreciated – allowing people to challenge the consensus. One blue-chip consulting firm believes that “dissent is an obligation,” meaning that the youngest person in the room should be able to challenge more experienced members of a team without fear of reprisal. Dissent dis-sent (noun/verb): the holding or expression of opinions at variance with those commonly or officially held. However, speaking truth to power could be considered an act of bravery in many organizations, as well as in the wider community. There are many examples of dissenters throughout history who have been ridiculed or even punished for their views. But though their bravery of standing center stage, and great sacrifice, they eventually convinced the masses of their position. They changed the world.

Dissent and Democracy

The Preamble to the Constitution of India promises liberty of thought, expression, belief, faith and worship. Clauses (a) to (c) of Article 19(1) promise:-

  • Freedom of speech and expression;
  • Freedom to assemble peaceably and without arms;
  • And the freedom to form associations or unions;

These three freedoms are vehicles through which dissent can be expressed. The right of freedom of opinion and the right of freedom of conscience by themselves include the extremely important right to disagree. The right to disagree, the right to dissent and the right to take another point of view would inhere inherently in each and every citizen of the country.

Every society has its own rules and over a period of time when people only stick to the age-old rules and conventions, society degenerates. New thinkers are born when they disagree with well accepted norms of society. If everybody follows the well-trodden path, no new paths will be created. If a person does not ask questions and does not raise doubts questioning age-old systems, no new systems would develop and the horizons of  the  mind  will  not  expand. Whether it be Buddha, Mahavira, Jesus Christ, Prophet Mohammad, Guru Nanak Dev, Martin Luther, Kabir, Raja Ram Mohan Roy, Swami Dayanand Saraswati, Karl Marx or Mahatma Gandhi, new thoughts and practices would not have been established, if they had quietly submitted to the views of their forefathers and had not questioned the existing practices, beliefs and rituals.

Importance of Dissent

Dissent is essential in a democracy. If a country has to grow in a holistic manner where not only the economic rights but also the civil rights of the citizen are to be protected, dissent and disagreement have to be permitted, and in fact, should be encouraged. It is only if there is discussion, disagreement and dialogue that we can arrive at better ways to run the country.

Dissenting in Judgments

It is a well-settled principle of jurisprudence that law should be certain, but in this fast-changing world can laws remain stagnant?

In my view the interpretation of the laws has to be dynamic and change with times and therefore it is not necessary that all of us agree with each other. That is why dissent plays an important role in the decision-making process.

Considering the case of A.K. Gopalan vs. The State of Madras

As far as India is concerned the 1st most important dissent was by Justice Fazal Ali in A.K. Gopalan’s case. The question to be decided in this case is whether the Preventive Detention Act, 1950 (Act IV of 1950), is wholly or in part invalid and whether the petitioner who had been detained under that Act was entitled to a writ in the nature of habeas corpus on the ground that his detention is illegal.

Majority:- If the procedure mentioned in those articles is followed the arrest and detention contemplated by article 22(1) and (2), although they infringe the personal liberty of the individual, will be legal, because that becomes the established legal procedure in respect of arrest and detention.

Fazl Ali, J.- Procedure must be reasonable and fair.

“The question is whether the principle that no person can be condemned without a hearing by an impartial tribunal which is well-recognized in all modern civilized systems of law and which Halsbury puts on a par with well-recognized fundamental rights cannot be regarded as part of the law of this country.…. If that is so, then ‘procedure established by law’ must include this principle, whatever else it may or may not include” This view was later accepted in R.C. Cooper’s case (Bank Nationalization Case). For many in the audience who joined practice in the 80s or thereafter, these observations would seem almost redundant, however at the time when they were made, these were path- breaking.

Conclusion

The right to dissent includes the right to criticize. We all must be open to criticism. The judiciary is not above criticism. If judges  of the superior courts were to take note of all the contemptuous communications received by them, there would be no work other than the contempt proceedings. In fact, I welcome criticism of the judiciary because only if there is criticism, will there be improvement. Not only should there be criticism but there must be introspection. When we introspect, we will find that many decisions taken by us need to be corrected. Criticism of the executive, the judiciary, the bureaucracy or the Armed Forces cannot be termed ‘anti-national’. In case we attempt to stifle criticism of the institutions whether it be the legislature, the executive or the judiciary or other bodies of the State, we shall become a police State instead of a democracy and this the founding fathers never expected this country to be.

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