Normative Value of Dissenting Judgments

The recent judgment by the Supreme Court that went in favour of the government’s decision of demonetisation has brought forth the issue where one will have to decide whether it is the majority consensus or the minority dissent that carries a superior value with itself. Does the dissenting judgment have a lesser value, and if it does, what value is it? Does the judgment acquire a differential value depending on the social and ideological background of the judges in question? Ideally, these two criteria do not matter in the process of delivering the judgment. Suffice it to say that for the purposes of delivering judgments, it is only the Constitution, law books, and judicial precedents in the past judgments that should count as the reference points. Let us focus on the first question then.

The Law and Society column in the current issue of EPW brings the deficiency in the efficacy of the judgment favouring demonetisation to our attention. One may choose to see the stamp of legality in the act of demonetisation—which, according to the column, has become a stale question by now—and yet it does not get attributed with legality or constitutional validity simply by the virtue of being a “good” measure.

Both these arguments, for and against demonetisation, tend to be operating within the same positivist framework of ascertaining the legality of the government’s decision. To this extent, one might argue that both these views have tried to safeguard the notions which the positivist perspective of law is associated with. However, what is needed, perhaps, is to take the argument much beyond the positivist framework of the judgment and ask the much bigger question of value. What exactly do the majority and the minority judgments contribute to the realisation of democratic as well as human value?

The judicial judgments may be technically safe but may not always be normatively sound. It may be safe for some but not so safe for the others. For example, the judgment of demonetisation may, in its technical procedures, be safe for some but undeniably oppressive for those who suffered in actual terms from such a decision. Suffering was not abstract but was real in terms of concrete loss and hardship that the people suffered on various counts. It was not temporary either but had long-lasting and adverse consequences on the lives of many.

In the present case, public dissent against this particular decision by the government keeps reverberating today even after many years, for some may not be convinced of its ground that could uphold the legitimacy of this decision. It may not emerge from a technical reading of the legal text or the law books. And yet, such a dissent resonates with upholding the question of the right to life informed by the Constitution. This is not to suggest that dissent in the judiciary does not operate within the wider concept of dissent in relation to democracy, which draws its sustenance from dissenting voices. It does contribute to the innovations in law that could be enacted in favour of minimising the harm resulting from the act or the policy of the government. Such judicial dissent can also lend life to the freedom of expression. Judicial dissent resonates with democratic values. It will be interesting to account for the record of such judicial dissents or even the consensual judgments that have expanded the purview of the law to such an extent that they contribute to both democratic as well as larger human value.

The relationship between the majority decision and minority dissent has to be understood in terms of the value that these diverse judgments add to the overall normative strength of democracy and the common good. The majority judgment might add to the value, confirming and upholding the importance of judicial procedures. But the value of legal positivism may fall short of creating a positive impact on the moral and material well-being of the people. Similarly, judicial assent and dissent may be important inasmuch as it contributes to the development of the law. But it also requires the moral thrust to go beyond the positivist framework and reflect on the government’s policies and acts and whether such polices and decisions are minimising the miseries of the people and restoring hopes in them or not.

It is in this context that one has to assess the judgment given by the judges on demonetisation. In fact, it will be interesting to assess the rate of dissenting judgments across the last few decades. It has been observed by some scholars that judicial dissent favouring normative values was reasonably high, particularly in the early decades of India’s independence. It is the creative relationship between judicial assent and dissent, on the one hand, and democratic and human values, on the other, that should offer a normative framework for model judgments to become a possibility.