The constitutional court plays a very important role in maintaining and
ensuring the rule of law and they also protect the fundamental rights of
citizens. In their process of interpreting and applying the constitutional
provisions, judges struggle with moral and legal questions. These questions are
frequently challenged and give rise to different perspectives among the judges
The expression of these different views, known as dissenting opinions. It has
emerged as a crucial part of the judicial process. This essay explores the
relevance of dissenting views in the judgments of constitutional courts,
focusing on their importance in safeguarding the integrity of the judiciary,
legal development, and ensuring accountability.
Nature of constitutional courts
Constitution describes the power and working of institutions, it also fixes
responsibility of the same institutions. But on the other hand, the making,
maintaining and changing of the constitution is also in the hands of these
institutions. They can amend them as they wish and mold it for their liking as
we have seen in many instances in the past.
So, there is a need for a system of checks on the amendments of the constitution
whether by legislature or by judgments of courts. This is where the
constitutional courts come in handy. Constitutional courts are the courts which
majorly deal with the constitutional laws. The main function of these courts is
to review the laws set up by either the lower courts or the legislature and
decide whether the law in question conflicts with constitutionally established
rules, laws, rights and freedom. Many countries have independent constitutional
courts like Spain, Korea, Russia etc. In India the rule is totally different as
the Supreme court of India also works as the constitutional court as well.
Constitutional courts play a very important role in functioning of democracy and
protecting the rule of law. Constitutional courts act as the guardians of the
constitution as they are tasked with interpreting and upholding the
constitution. Constitutional courts are often the final arbiters in
constitutional disputes and conflicts. When there are disagreements about the
interpretation of the constitution or conflicts between different levels of
government, the constitutional court's rulings provide clarity and resolution.
By reviewing the constitutionality of government actions and laws,
constitutional courts serve as a bulwark against abuses of power and
authoritarian tendencies. They ensure that government actions are in the public
interest and consistent with democratic principles. When constitutional courts
make fair and impartial decisions, they enhance public trust in the legal and
political system. Citizens are more likely to have confidence in their
government and the fairness of the legal system when they know there is an
institution dedicated to upholding the constitution.
This distinctive function demands a more robust and deliberative decision-making
process, where the significance of dissent views becomes particularly evident.
What is dissent view
When a constitutional court hears a case, the judges or justices analyses and
reach a decision on the legal issues presented. In many cases, there will be a
majority opinion, which represents the decision of the court. However, it is not
uncommon for some judges or justices to disagree with the majority's
interpretation of the law, its application to the case, or the reasoning behind
A dissenting view is not merely a verbal disagreement; it is a formal, written
expression of the judge's or justice's dissenting opinion. In this written
opinion, the dissenting judge provides a detailed explanation of why they
disagree with the majority decision. They may present their own interpretation
of the law, alternative legal reasoning, or an analysis of why they believe the
majority opinion is incorrect.
Dissenting views carry legal significance, although they are not the majority
opinion. They are part of the official court record and are often published
along with the majority opinion. While they are not binding precedent, they can
serve as persuasive authority in future cases and contribute to the ongoing
development of legal principles.
he importance of dissent in cases involving the Fundamental rights cannot be
over emphasized. Such cases always have two facets and two possible
interpretations, one in favor of citizens and other in favor of legislative.
Court can only decide in Favour of one and it does that. In such cases the
dissent view shows the other aspect about what could have been.
The dissent view carries a very important roles in constitutional courts which
are as follow:
- Protecting the Law
One of the foremost responsibilities of constitutional courts is to safeguard
the rule of law. This entails ensuring that government actions are consistent
with the constitution, thereby preventing abuse of power and upholding the
rights of citizens. Dissent views serve as a crucial check on majority decisions
that might erode these fundamental principles.
- Checks and Balances: Dissent views act as a form of internal checks and balances within the judiciary. They prevent a concentration of judicial power and guard against the tyranny of the majority. When dissenting judges voice their objections, they compel the majority to reexamine their reasoning and consider alternative interpretations.
- Protection of Minority Rights: One of the primary functions of a dissenting opinion is to protect the rights of the minority party involved in the case. It ensures that even if a majority of judges or justices reach a particular decision, the dissenting view provides a voice for those who hold a different perspective. By expressing their disagreement in a written opinion, the dissenting judge or justice highlights potential violations of individual or minority rights and seeks to prevent the majority from infringing upon those rights. One of the best examples of this is Justice Benjamin Curtis's important dissent in the case of
Dred Scott v. Sandford, where the majority view was that slaves from Africa are not entitled to citizenship of America. The other dissent came from Justice John McLean later the 13th, 14th, and 15th amendments of the American Constitution overturned the majority view for good.
- Preservation of Legal Principles: Dissenting views serve to preserve legal principles and constitutional values that may be under threat due to evolving interpretations or societal changes. Judges issuing dissenting opinions often argue that the majority's decision could undermine foundational legal principles, and they seek to uphold the original intent of the constitution or legal statutes.
- Legal Development Constitutional law is dynamic and ever evolving,
reflecting changing societal norms, values, and challenges. Dissent views
play a pivotal role in fostering legal development in several ways.
- Stimulating Debate: Dissent views stimulate legal and public debates about important constitutional issues. They force society to confront complex questions and consider alternative interpretations. This dialogue helps refine legal arguments and contributes to the evolution of constitutional jurisprudence. Publication of the dissent helps to polish and improve the knowledge of the majority, ensuring that everyone is considered while making decisions and remains independent of undue influence. This holds decision makers responsible for their judgments, rather than taking the easy way out.
- Way to Future Cases: Dissenting opinions can influence future legal decisions. While they are not binding precedent like majority opinions, they can serve as persuasive authority for other judges and courts facing similar legal issues. Over time, dissenting views can contribute to the evolution of legal doctrine and may eventually become the basis for changes in the law. One notable example of this is the dissent of Justice Louis Brandeis in the case of
Olmstead v. United States regarding the permissibility of wiretapping, which was later declared unconstitutional under the Fourth Amendment in
Katz v. United States.
- Accountability and Transparency
Accountability and transparency are essential principles of a functioning
democracy, and constitutional courts are no exception. Dissenting views
contribute significantly to these principles within the judicial branch.
Understanding Judicial Reasoning:
- Judicial Accountability
Evaluating Majority Decisions: Dissenting opinions provide a means of evaluating
the reasoning behind majority decisions. This scrutiny is essential for holding
judges accountable for their interpretations of the constitution. It allows for
a more informed assessment of whether a decision was grounded in sound legal
principles or influenced by political or ideological factors.
Exposing Potential Bias: When dissenting judges highlight potential bias or
undue influence in a majority decision, it serves as a mechanism for exposing
corruption or undue political pressure within the judiciary. It helps to
maintain the purity of the judiciary.
Public Confidence: Transparency in the judicial process enhances public
confidence in the judiciary. The publication of dissenting opinions shows that
the judiciary is not a unitary entity but a collection of independent thinkers
who debate and scrutinize constitutional issues and takes the fair decisions
which favors the citizen not any policy maker or powerful peoples. Which in turn
increases the confidence of the public in judiciary.
Dissent views provide citizens, legal
scholars, and other stakeholders with a deeper understanding of the reasoning
behind judicial decisions. This transparency helps educate the public about the
complexities of constitutional law and the judiciary's role in upholding
Dissenting opinions can sometimes provide guidance to
legislatures. If judges believe that a legal issue is better addressed through
legislative action rather than judicial interpretation, they may use their
dissenting opinion to call on lawmakers to clarify or amend the law.
Respect for Precedent and Stare Decisis:
Dissenting opinions may express
concerns about departing from established legal precedent or principles. Judges
may argue that the majority opinion fails to respect the doctrine of stare decisis (the principle of adhering to past decisions) and risks creating legal
uncertainty. In this way, dissenting views can emphasize the importance of
consistency in the application of the law.
Dissenting views contribute to legal scholarship and education.
They provide valuable insights into different interpretations of the law and the
complexities of legal issues. Law students, legal scholars, and practitioners
often study dissenting opinions to gain a deeper understanding of legal
principles and the diversity of legal thought.
In essence, dissenting opinions in constitutional courts serve as a cornerstone
of the judicial process, promoting debate, preserving legal principles,
upholding accountability, and contributing to the development and refinement of
the law. They are an essential component of a robust and dynamic legal system,
ensuring that the rule of law is upheld and that the judiciary functions as an
effective check on governmental power.
The Global view on Dissenting Opinions
Constitutional courts around the world vary in their approach to dissenting
views. Understanding how different countries handle dissent can provide valuable
insights into the practice's relevance and effectiveness.
Position in India
- United States:
- In the United States, the Supreme Court has a rich tradition of issuing dissenting opinions.
- Dissents often play a prominent role in shaping legal discourse and influencing public opinion.
- The Court's decisions on issues like abortion (Roe v. Wade), same-sex marriage (Obergefell v. Hodges), and affirmative action (Grutter v. Bollinger) have been accompanied by powerful dissents. These dissents have led to ongoing debates and, in some cases, legislative action.
- Germany's Federal Constitutional Court, known for its detailed decisions, places a strong emphasis on dissenting opinions. Dissenting judges are encouraged to write separate opinions, and these views are published alongside the majority opinion. This practice ensures transparency and allows for a thorough examination of dissenting viewpoints. Notably, dissenting opinions in Germany are not regarded as mere disagreements but as valuable contributions to the development of constitutional jurisprudence.
- South Africa:
- South Africa's Constitutional Court, in line with its commitment to openness and transparency, also values dissenting opinions. Dissenting judges are encouraged to provide their views, and these opinions are an integral part of the court's judgments. This practice reinforces the court's commitment to democratic principles and accountability.
- European Court of Human Rights (ECHR):
- The ECHR, responsible for interpreting the European Convention on Human Rights, has seen a growing number of dissenting opinions in recent years. These opinions often reflect the cultural and legal diversity among member states. While the ECHR lacks a specific provision on dissenting opinions, they are viewed as essential in safeguarding human rights across Europe.
In India the dissent view regarding the rights conferred in the citizens of
India had the significant role in judicial system. But in India like many other
countries there is no separate constitutional courts, only Supreme court looks
after the cases related to constitution and laws. Since the establishment of
supreme court in India, there have been several important instances of dissents
which influenced the future decisions.
If we take examples, first is the dissent of Justice Sayid Fazal in the case of
A.K Gopalan V. State if Madras
(AIR 1950 SC 27) where the Detention Act 4 of
1950 was being challenged. He dissented from other judges and gave a powerful
exposition. He said all the fundamental rights conferred on citizens should not
be read separately but together as they overlap. The reading of these
fundamental rights is now widely used.
If we take the second example of the case of Kharak Singh V. State of U.P
to mind which pertained to surveillance by the police and domiciliary visits.
Justice Subha Rao dissented and broadened the scoop of liberty and wrote" It is
true our constitution does not expressly declare right to privacy as a
fundamental right, but the said right is essential ingredient of personal
It's in 2017, the Supreme Court overturned the Kharak Sing judgement in his
judgement by nine judge bench in K.S puttaswamy and ors. V. Union of India and
ors. Court help that right to privacy was a fundamental right under Indian
Justice Chandrachud's dissent in Adhar card case is also a recent and very
important dissent in Indian history
5.1 The decreasing trend of dissenting Judgements in recent past
The origin of dissent view can be traced back to the common law countries as
they began to � publish these views to improve the administration and
transparency of these courts. If we go into history, the dissent started
immediately after the formation of supreme court. The highest publication of
dissents observed was in the 1960-70, we can see many dissents of that time
which went on to change the course of the justice system of India.
there was the decline of dissent opinions in in the third decade of Supreme
Court's formation. Cases in which there was a decrease of dissent opinion were majorly related to the objection of executive and legislature and the law formed
by them. This was also the decade when Indira Ghandhi government appointed
judges for their political and personal gain which led to the formation of
collegium system. This fall of dissenting views has been consistent after that
The following reasons can be majorly described for the decline of dissenting
Influence of seniority on dissent:
It doesn't matter how many judges are there in bench the senior most judge will always have the major influence on the decision making of the court and on the other judges. As we can see from many past decisions and dissent, the majority of dissents came from the senior most judges.
As the seniority of the judges decreases the number of dissent views also decreases. As the junior judge dissents from senior judges' judgement, he will have very little to no influence on either other judges or even on the public. So Junior judges have stopped dissenting in senior judge's judgements due to fear of losing the support from the other judges.
Increase in the number of judges on the bench:
Supreme doesn't hear the cases in front of all the judges but hearing of cases is devised into the different types of benches which is determined by the chief justice of court depending on the nature of cases. These benches comprise of many judges so dissent is impossible in this scenario as we can't find one judge's opinion superior to other judges. If there arises a disagreement between judges the CJI refers the cases to other judges, so the disagreement is nearly impossible.
Influence of Chief Justice:
AS the CJI is present on many benches which leads to the decrease in the dissents on the judgements of the same bench. We can see from the past instances that the dissents when the CJI is present in the bench had been decreasing regularly and constantly.
Yet the dissents are decreasing in Indian judicial system they impose a very
crucial role in it and its betterment so we should try and save this important
realm of the democracy
Challenges and Criticisms of dissent view:
While the relevance of dissenting views in constitutional court judgments is
undeniable, there are challenges and criticisms associated with their use.
- Delays in the Justice System: Dissenting opinions can prolong the adjudication process, leading to delays in the resolution of cases. This can have practical consequences, especially in cases with urgent implications. Our justice system is already delayed, i.e., the cases presented in a case take years for their judgments to come, and if we add dissenting views in it, it will take more time.
- Complexity: Some dissenting opinions may be lengthy and legally complex, making them less accessible to the general public and even other judges. This complexity can hinder their impact and understanding. We lack legal education in the general public, and these complex judgments will not help.
- Alternative Formats: To address concerns about lengthy opinions, courts could explore alternative formats for presenting dissenting views, such as video summaries or podcasts, making them more accessible to the public.
- Expedited Procedures: Courts could establish expedited procedures for cases requiring urgent resolution, which would reduce the potential delays caused by dissenting opinions as mentioned above.
- Erosion of Judicial Unity: Dissenting opinions can lead to a perception of disunity within the judiciary, potentially undermining public confidence in the court's decisions. Critics argue that a unanimous or near-unanimous ruling carries more weight and legitimacy.
- Legal Uncertainty: Dissenting opinions can create legal uncertainty because they represent a different interpretation of the law. This can make it difficult for individuals and institutions to understand and predict the legal landscape.
- Potential for Politicization: Dissenting opinions can be used for political or ideological agendas. Judges may write dissents to appeal to specific interest groups or to influence future legal debates.
- Minority Rights: Dissenting opinions may not sufficiently protect minority rights, as they do not always lead to changes in the law or policy. They may be viewed as symbolic gestures rather than effective advocacy for minority interests.
- Impact on Consensus Building: While dissent serves as a valuable check on majority power, it can sometimes hinder consensus-building and compromise within society, especially in politically charged cases.
Dissenting opinions can sometimes contribute to polarization within the
judiciary, as well as in society at large. When judges take starkly opposing
views, it may exacerbate divisions and undermine the perceived impartiality of
It's important to note that dissenting opinions also have important advantages
as mentioned above, such as promoting debate, ensuring checks and balances, and
protecting individual rights. The criticisms and challenges associated with them
are part of the broader debate surrounding the role of dissent in legal systems
and democratic societies.
How to approach dissent view in a balance form
To maximize the relevance of dissenting views in constitutional court judgments
while addressing the challenges they pose, a balanced approach is necessary.
- Encouraging Concurrences:
- Concurrence Norms: Encouraging judges to write concurring opinions instead of dissenting ones when they have nuanced disagreements with the majority can help minimize polarization and streamline the decision-making process.
- Clear Standards: Establishing clear standards for when dissenting opinions are appropriate can help ensure that they are used judiciously and not as a means of advancing personal or political agendas.
- Transparency and Accessibility:
- Summarization: Courts can adopt practices where dissenting opinions are summarized in plain language for public consumption. This enhances transparency and accessibility.
- Education: The judiciary should invest in public education efforts to explain the importance of dissenting views in constitutional adjudication and their role in safeguarding democracy.
- Precedent Consideration: Assess the precedential value of dissenting opinions carefully. While they may not carry the same weight as majority opinions, they can still be valuable in influencing future decisions. Courts should weigh the merits of dissenting views and consider them in future cases where relevant.
- Legislative Clarification: In cases where dissenting views raise legitimate concerns about statutory interpretation or constitutional issues, legislative bodies can consider clarifying or amending the law to address those concerns.
- Accountability Mechanisms:
- Ethics Oversight: Robust ethics oversight mechanisms should be in place to ensure that dissenting opinions are not driven by political or personal biases but are genuinely rooted in legal interpretation.
- Continuing Legal Education: Judges should engage in ongoing legal education and training to improve their ability to constructively engage in dissenting opinions.
- Respect for Legal Tradition: Ensure that the legal system respects its tradition of allowing dissenting opinions. This tradition has often been developed over time to strike a balance between majority opinions and dissenting voices.
Balancing dissenting views is a complex and ongoing process that requires a
commitment to democratic values, transparency, and a nuanced understanding of
the role of dissent in the legal system. It also involves a delicate balance
between individual expression and the need for effective governance and legal
In the realm of constitutional jurisprudence, the importance of dissenting
perspectives in court judgments cannot be overstated. These dissenting
critiques, often visible as voices of competition, carry out a crucial role in
safeguarding democratic values, protective individual rights, and fostering
The relevance of dissenting perspectives extends far past the
courtroom, permeating the very essence of a simple and responsible society.
Dissenting perspectives serve as a protect for the rule of thumb of regulation,
functioning as a sturdy take a look at and stability mechanism within
constitutional courts. By making a hard majority choices, they compel judges to
scrutinize their reasoning, reconsider interpretations, and contemplate
opportunity felony views.
This inner scrutiny is critical in maintaining the
integrity of the judiciary and retaining the separation of powers-an essential
guideline of democratic governance. The dissenter's role, similar to that of a
prison sentinel, is to sign capability deviations from the constitutional
direction, thereby fortifying the guideline of law. Furthermore, the fostering
of felony development is an indispensable factor of dissenting views.
Constitutional regulation isn't always static; it evolves to reflect the
transferring sands of societal norms and values.
Dissenting reviews stimulate
felony discourse, engendering debates that go beyond the court and reverberate
for the duration of society. By imparting alternative interpretations and
arguments, dissenters compel prison students, policymakers, and residents to
engage in considerate mirrored images, ultimately contributing to the evolution
of constitutional jurisprudence. In many times, what became as soon as a
dissenting view turns into the triumphing prison doctrine as society progresses
Beyond the confines of prison academia and court deliberations, the
importance of dissenting views lies in their position as instruments of
transparency and responsibility. In an era where transparency is the cornerstone
of right governance, constitutional courts need to stay open to public scrutiny.
Dissenting views provide a window into the judicial choice-making procedure,
permitting residents to witness the intellectual rigor and ethical fortitude of
This transparency engenders agreement with and self-assurance
within the judiciary-an essential pillar of a well-functioning democracy. As
we've explored, dissenting views are not without their demanding situations and
criticisms. Lengthy and complicated opinions, the potential for polarization,
and worries approximately political influence underscore the need for a sensible
and balanced approach.
Striking this balance necessitates the encouragement of
concurrences, the enhancement of transparency and accessibility, and the
establishment of robust accountability mechanisms in the judiciary. In a world
characterized by the aid of diversity of concepts, beliefs, and identification,
the role of dissenting perspectives becomes even extra profound.
They are not
only a testimony to the plurality of views but a celebration of the democratic
spirit that thrives on talk, debate, and dissent. In the pages of judicial
dissent, we find a testimony to the long-lasting power of democracy and the
enduring relevance of dissenting views within the judgments of constitutional
courts. As we pass ahead, these voices of competition will retain to shape the
trajectory of constitutional regulation, making sure its responsiveness to the
ever-evolving needs and aspirations of a dynamic society.
- The decision of the U.S. Supreme Court in the case of Dred Scott v. Sandford set aside the Northwest Ordinance, the Missouri Compromise of 1820, and the Illinois state constitution, in order to permit the holding of slaves in formerly free soil of the territories above the northern boundary of Missouri. The case exacerbated political tensions on the slavery issue and moved the United States closer to civil war.
- The principle of liberal construction applied to the Amendment to effect its purpose in the interest of liberty will not justify enlarging it beyond the possible practical meaning of "persons, houses, papers, and effects," or so applying "searches and seizures" as to forbid hearing or sight The policy of protecting the secrecy of telephone messages by making them, when intercepted, inadmissible as evidence in federal criminal trials may be adopted by Congress through legislation, but it is not for the courts to adopt it by attributing an enlarged and unusual meaning to the Fourth Amendment.
- Yes, yes. Justice Anthony M. Kennedy delivered the opinion for the 5-4 majority. The Court held that the Due Process Clause of the Fourteenth Amendment guarantees the right to marry as one of the fundamental liberties it protects, and that analysis applies to same-sex couples in the same manner as it does to opposite-sex couples.
- The use of an applicant's race as one factor in an admissions policy of a public educational institution does not violate the Equal Protection Clause of the Fourteenth Amendment if the policy is narrowly tailored to the compelling interest of promoting a diverse student body, and if it uses a holistic process to evaluate each applicant, as opposed to a quota system.