Nariman’s reflections on the absence of dissent in the Article 370 verdict resonate with his earlier concerns. In a conversation with journalist Karan Thapar from The Wire, he described the verdict as ‘totally erroneous and bad in law’.
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Senior Advocate Fali S Nariman, a distinguished figure in the Indian legal fraternity, has yesterday 5th Jan 2024, expressed his disappointment over the lack of a dissenting judgment in the Supreme Court’s verdict regarding the abrogation of Article 370. Speaking at the 28th Justice Sunanda Bhandare Memorial Lecture, Nariman highlighted the vital role of dissent in the judiciary, especially in cases of significant national importance.
Reflecting on the Supreme Court’s unanimous decision, which validated the union government’s move to revoke Jammu and Kashmir’s special status under Article 370, Nariman remarked,
“On reading the very exhaustive and learned judgments on Kashmir recently handed down by a constitution bench of five judges, my regret has been that there was no dissent.”
This bench included Chief Justice DY Chandrachud and Justices Sanjay Kishan Kaul, Sanjiv Khanna, BR Gavai, and Surya Kant.
Nariman emphasized the value of dissenting opinions in fostering a deeper understanding of complex legal issues among the general public. He stated,
“But better still, it would have helped the not-so-well informed general public to better understand and appreciate the contours of this unique very long and somewhat complicated case about India’s northern-most state.”
His comments underscore the role of dissent in not only enriching judicial reasoning but also in enhancing public comprehension of judicial processes.
In his address, Nariman elaborated on the broader significance of dissent in the legal system. He asserted,
“Yes, I do believe it is needed because often a dissent in a bench of judges, whether of three, five, seven, or nine, is not just a safety valve; it also sends a message of assurance to the ever-curious and ever-anxious general public that the highest court is in robust health and doing its allotted task well.” He further quoted an American judge, highlighting the long-term importance of dissenting opinions: “A dissent may salvage for tomorrow, a legal principle that has been omitted or forgotten today.”
Nariman also praised Justice BV Nagarathna for her capacity to dissent in crucial matters, expressing admiration for her legal acumen and her willingness to diverge from her colleagues on the bench. He said,
“What I admire is not just her legal knowledge but in important constitutional cases, she has shown that she is able, ready and willing to dissent from the views expressed by other colleagues on the bench,”
Among Justice Nagarathna’s notable dissents are her judgments refusing to uphold the union government’s decision to demonetize high-value currency notes in October 2018 as legal, and her disagreement with the majority view that fundamental rights under Articles 19 and 21 of the Constitution should be made horizontally applicable against non-state entities and private persons.
Nariman’s reflections on the absence of dissent in the Article 370 verdict resonate with his earlier concerns. In a conversation with journalist Karan Thapar from The Wire, he described the verdict as ‘totally erroneous and bad in law’, arguing that by not deciding on the conversion of the erstwhile State of Jammu and Kashmir into a union territory, the Supreme Court enabled the union government to bypass Article 356. He concluded that, while the decision was politically correct, it was constitutionally flawed, stating, “It was wrongly done.”
Recently, former Supreme Court judge Rohinton Fali Nariman had also commented on the Article 370 verdict and called it disturbing Justice Nariman is the son of Fali Nariman.
Justice Nariman had said that by refusing to decide on the conversion of the State into the Union Territory, the apex court allowed the Union government to bypass Article 356 as per which President’s rule in a State is possible only for a year.
“Article 356 deals with Constitutional breakdown, when Centre takes over. In no circumstances can it go beyond one year, unless there is national emergency or Election Commission should say elections are not possible,”
Justice Nariman had said.
Nariman’s insights offer a profound perspective on the importance of dissent in the judiciary, highlighting its role in ensuring a robust, transparent, and healthy legal system. His emphasis on dissent underscores its significance in safeguarding legal principles and fostering a more informed public understanding of judicial decisions.