The algebra of dissent

To heed the conscience of the court, and hence the nation, we must honour dissenting judgments Over the past few days in the Supreme Court we have seen some remarkable dissents: Justices Indu Malhotra in Sabarimala , D.Y. Chandrachud in the Activists case and Aadhaar , S. Abdul Nazeer in the Babri reference. Applying the logic of arithmetic, the majority won, the dissenters lost. The media and populist trains soon left the platform. But applying algebra will provide many more insights into both the concurring and dissenting judgments. Reading a judgment Some concurring judgments (for example, those of Justice Ashok Bhushan in the AAP v. Delhi LG case and Live Broadcasting case ( Swapnil Tripathi v. Supreme Court ) tend to repeat the majority, but most judgments, on either side, redeem themselves in some way or the other. Of course, we have to read them, sometimes with difficulty. The Basic Structure judgments ( Kesavananda, 1973) were huge. The Aadhaar judgments offer competition. Our judges should write shorter and more pointed judgments. Of course, in my view, at least two Chief Justices did not write their own judgments. One Chief Justice of India simply repeated arguments of the counsel for most of the judgment and then gave his reasoning in cursory paragraphs. Judgments have to be written with application of mind and reasoning. This is what I call both processual (to listen with care) and value (appreciate and reason with rigour) accountability. It is on this basis that the judiciary has a hallowed place in our democratic Constitution as a custodian of the rule of law and justice.

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