Abstract
Dissenting judgments in the Indian Supreme Court are more than disagreements with the majority. They express alternative constitutional visions and often guide the future development of law. This paper examines the role of dissents through two approaches: natural law and legal positivism. From a natural law perspective, dissents protect core values such as dignity, liberty, equality, and fairness, especially when strict procedures threaten justice.
Historic dissents in cases like ADM Jabalpur, A.K. Gopalan, and Kharak Singh later shaped landmark rulings such as Maneka Gandhi and K.S. Puttaswamy, showing how moral reasoning can mature into binding law. From a legal positivist perspective, dissents safeguard constitutional structure by insisting on correct sources, procedures, and legislative processes, as seen in debates on Article 110 and free speech laws.
The paper argues that India’s strongest dissents combine moral clarity with legal precision, allowing future courts to adopt them clearly. Properly structured dissents strengthen democracy, judicial reasoning, and constitutional continuity.
Introduction
Dissenting judgments in the Indian supreme court are well-reasoned disagreements in which a judge states as alternate interpretation of constitutions or a statute when the majority’s course of action seems to jeopardies fundamental constitutional principles or circumvent the correct legal process. A dissent is not simply a disagreement, it is a message to the future.
Indian constitutional experience illustrates how opinions first articulated in dissents can ripen into binding law subsequently, when facts, social insights, and doctrinal apparatus mature. This article analyses the jurisprudence of dissent through the lenses of two perspective, dissents argue in favor of value such as human dignity, freedom, adequality, claiming that law devoid of moral substance can strip rights of their substance.
Through the lens of legal positivism , dissent dissents police the sources and procedure that authorizes law, contending that constitutional text, institutional pedigree, and proper process are not technicalities but rightprotection. The paper uses such lenses on landmark cases like “A K Gopalan v. State of Madras”[1], “MenkaGandhiv. Union of India”[2], “KharakSingh v. state of Uttarpradesh,”[3] , “justice K.S. puttaswamy v. Union of India” [4], “ADM Jabalpur v. ShivkantShukla”[5] ,” KedarNath v.state of Bihar”[6] and key provisions like article 14,19,21,110 etc.
The main aim is to demonstrate that dissent protects substantive values as well as imposes lawful structure, and that India’s finest dissents combine moral clarity with doctrinal craft so subsequent courts can adopt them without ambiguity.
Conceptual framework
A dissent is an opinion that is non binding with minority on the result , rationale or both. Its two fold purpose is first as a conscience check within court. When a judge feels the majority rationale undermines essential values such as liberty or equality, or uses alegal shortcut , a dissent explicitly documents an alternate path. Second , it serves as intuitional memory, a dissent preserves standards, tests, and structural courts sits regularly in multi judge benches in constitutional cases, which tends to generate separate opinions naturally.
This polyvocalapproach has advantages like comparative methodology, rich analysis, and more than one standard in play but with the danger that lower courts and officials can be unclear which ratio decidendi binds them. For that reason, the art of judgment writing is important. Clarity on holding, diligent charting of agreements and disagreements and clear directions about what agencies and the next day can allow the dissent to bloom without obscuring the law, schools of jurisprudence.
Schools of jurisprudence
Natural law : dissent as moral guardianship
Natural law theory conceives of law as legitimate only if it respectful of basic moral principles. In this perspective, judges have the responsibility of upholding the dignity , freedom, and equality of individual, particularly when there is strong executive power or procedures risk becoming ends rather than means. A traditional Indian case is the dissent of justice H.R. Khanna in ADM jabalpur v. shivkantshukla . During the emergency, the majority allowed suspension of remedies even for fundamental rights, de facto denying “habeaus corpus”.
The dissent of justice Khanna maintained that life and personal liberty are not favors of the executive and do not vanish when the government proclaims an emergency. He contended that rule of law is not a switch that can be turned off by state and that constitutioncannotbe construed to strip liberty of meaning. Though his opinion did not carry the day at that time , it served as a moral compass for subsequent jurisprudence and public constitutional culture. In that way, the dissent was a constitutional conscience. It informed the court and the nation that no perfect can justify injustice.
The natural law also surfaces in the move from formal interpretations of article 21 to a dignity based due process. A.K. Gopalan v. state of madras the majority reads article 21 as satisfied by any procedure established by law, largely disconnecting it from article 14, and 19. Justice Fazl Ali’s dissent pushed for an integrated reading of fundamental rights and warned that a purely formal procedure could allow arbitrary state Action. Nearly three decades afterMenkaGandhi v. union of India embraced that holistic approach, and the view that article 14, 19 ,21 are intertwined and that every procedure to deprive liberty has to be right, just and fair rather than arbitrary or oppressive.
Likewise in KharakSingh v. state of Uttar Pradesh the majority rejected an independent fundamental right to privacy but in a separate opinion justice K Subba Rao contended that privacy is vital to personal liberty and dignity. Two decades later in justice K.S. puttaswamy v. union of India the court by a majority recognized privacy as a fundamental right based on article 14. 19 and 21. And entrenchedproportionality as a natural test for curbs on rights. From Gopalan to MenkaGandhiandKharakSingh to puttaswamy are templates for the manner in which natural law inflected dissent may coalesce into constitutional law. The minority initially declares the moral stakes, and subsequent court translates such values into binding norms.
Legal positivism :Dissent as structural and source based correction
Legal positivism stresses that law derives its authority from acknowledgedsourcesconstitutional text, enacted legislature, proper procedures. Positivist analysis inquires whether the action or statute abides by procedures the constitutional and statutes themselves dictate. Dissent in such cases are crucial since they police procedural lines and sharpen interpretivecanons. The best contemporary example is justiceD.Y. Chandrachud’s dissent in justice K.S. puttaswamyv. Union of India. He contended that Adhaar act, did not belong to the tightly constrainedcategories of article 110[7]and hence could not be enacted as a ”money bill“. Since article 110 states a money bill shall have only provisions of certain types of fiscal nature , taking that route for a sweeping national identification law avoided the role ofRajyaSabha and diluted bicameral examination. This is traditional positivism, it looks at the constitutionaltext , categorizes the provisions of law , and decides thelegislative path was illegal. it also supports rights by justifying structure, when bicameral checks are observed, privacy, welfare and surveillance affected laws will be subjected to more extensive debate and analysis[8].
Positivist methodology is also found in statutory speech cases. In “KedarNathSingh v. state of Bihar”[9] the court affirmed “section 124A IPC”[10] which talks of sedition but restricted it to speech that has the incitement to violence or tendency to cause public disorder, this narrow reading is a source based means to restrain an overboard law. In “Shreya Singhal. Union of India”[11] the court invalidated means out a lot more that article 19(2) allows. These are not moral vetoes but legal decisions that a statute’s language does not meet constitutional requirements. Positivist dissents and verdicts therefore yield functional rules and unambiguoussignals toadministrators, police, and lower courts. They make the law predictable and ensure that constitutional boundaries have teeth in reality.
Application
The view of natural law gives explanation of the early dissents that then recognized the law. A.K.Gopalan started off on a formal, compartmentalized perception of basic rights , the dissent of justice FazlAlipromoted a unity of articles 14,19 and 21[12]. ManekaGandhi sanctified that unity and turned article 21 into an effective armor demanding just and fair procedure, in KharakSingh the perception of justice Subba Rao that intrusive surveillancenegates liberty developed into justice K S puttaswamy v. union of Indiawhich held privacy to be a constitutional right and instilled a proportionality test .These changes did not occur by chance. The dissent preserved the richer vision, providing a subsequent court with an easy ready set of reasons to incorporate when society and technology had evolved.
The positivist perspective then demonstrates how dissents safeguard structure so that rights may live and breathe. In puttaswamyAdhaar case justice Chandrachud’s dissent connected article 110[13] to integrity of bicameralism, contending the Adhaaract could not be legitimized as a money bill. By upholding the proper legislative channel, the dissent support the positionof the RajyaSabha as a check and balance , imparting how rights are debated and defeated. In regulation of speech by statute, KedarNathSingh and ShreyaSinghal are the quintessential positivist excersice. Reading the text in constitutional constraints and narrow or strike it down when it ventures beyond. These methods convert dissents and ruling into instruments of day to day administration, rather than sermons on principle.
Solutions and Recommendations
- Judgments having more than one opinion must have a short holdings chart or issues matrix at the end. For every question lets say whether a law is a money bill under article 110 , whether a specific surveillance activity satisfies the test of proportionality under article 21 , or how to use section 124A IPC according to KedarNathSingh. The court must show which specificpropositions command a majority. This enables lower courts and agencies to apply the law the following day without ambiguity.
- Both majority and dissenting opinions must distinguish holdings from dicta and articulate workable standards. If a dissent suggests a proportionality test, it must detail the steps like legitimate aim ,rational connection , necessity or at least restrictive means and balancing and offer guidance on evidence. If a dissent objects to the invocation of article 110, it must detail clause by clause how the law’s provisions do not meet the only provisions test and what an acceptable bill would be.
- Legal and judicial education must instruct ration extraction of multi opinion constitutionaldecision. Students , clerks, and lawyers need to be trained to recognize the narrowest grounds that require a majority and to appreciate how dissents construct doctrine opinions for the future.
- Public explanation summarizes, press briefings by registries, or plain- language guides must clarify why dissent is usual in a constitutional court and how to read a multi opinion decision. . This safeguards public confidence and makes it easier for non- lawyers to see that disagreement within the court can make the institution stronger, not weaker.
Comparative Analysis
A brief comparison with us makes clear what dissent can do and why structure is important. Historic dissent in the US by justice Holmes , and others contributed significantly toreintervening constitutional law in the US. Justice Harlan’s isolated dissent in “plessy v.ferguson” notoriously asserted that the constitution is color blind, previewing “brown v. board of education” decades hence. Justices Holmes and Brandeis employed dissents to develop a strong free speech tradition, which subsequently became at the heart of first amendment doctrine.
The US supreme court on the other hand usually voices it self in single majority opinions, and ideological blocs established through presidential appointment and senate confirmation occasional judgments where several concurring and dissenting opinions combine moral, structural, and methodological reasons. This multi voicedapproach may enrich doctrine but enhances the demand for explicit identification of binding norms[14].
Both system have a common lesson, dissent sows future correctives and enhances doctrinal clarity. The distinction is in shape and administration. In India , there are frequent separate opinions, so every judgment must ideally end with an explicit articulation of holdings, what exactly hasmajority and what is persuasive but non- binding. In US , in which a single majority viewpoint is more typical, dissent tend to be longer-term persuasion and not short-term doctrinal devices. But in both the nations, historic dissents acquire power when they are built on moral rectitude plus clear legal standards, which can be adopted later with ease.
Present day instances and observastion
In recent years, the public has witnessed how dissents shape day to day constitutional life. The “article 110” and “Aadhar act” debates established that legislative processes are not technicalities- legislative routes decide how much discussion and scrutiny a right implicating legislation gets. Post “K S puttaswamy v union of India ”[15] privacy thinking impacts surveillance, data gathering and benefits distribution where authenticationsfailure may lead to exclusion . Law school classrooms and legal practices seminars often make use of separate and dissentingopinions to find ways to balancearticle 14 , article 19 , article 21 ,interpretingarticle 110 and circumscribe speech related law such as section 124A IPC[16], leaving core political speech intact under article 19(2)(a). this demonstrates dissents making their way from the courtroom to civil education, informing how a new generation of people read cases and statutes.
Critical examination
The most compelling case in front of dissent is that it compels improved reasoning by court and open a line for futureratification. Dissents in India paved the way for law to move from formal legality to substantive fairness in MenkaGandhi and from suspicion to acknowledgement of privacy in justice K Sputtaswamy v union of Indialinked to bicameral process directly with protection of rights. In speech and tech, the demand for accurate statutory languages reflected in KedarNathSingh and the striking down of section 66A IT Act[17] in ”Shreya Singhal v. union of India”[18] illustrates how dissent conscious doctrine avoids chilling effects and over criminalization[19].
In India, several concerning opinion can stall illumination for high courts and administrators who are required to implement the law at once and can indistinguishably blur holding and dicta. In India constitutionalBeneches must attach a brief issues matrix indicating each questioneach holding and what proposition has the majority. Majority and dissenting opinion must clearly indicate what is holding, what is dicta , and what concrete measures lower courts and agencies need to adopt.
Conclusion
Dissenting opinions of the Indian supreme court are drivers of constitutional education and bulwarks of democracy. From the perspective of natural law, dissents demand that law respects human dignity, freedom and equality ,they will not allow procedure to rationalize injustice. From the perspective of legal positivism , dissenting petrol constitutionalsources and procedures text, hierarchy, process so that right are ensures by design and not by chance. India’s constitutional history attests that greatest dissents are a combination of these strengths. From AK Gopalan to MenkaGandhiand kharakSingh to puttaswamy.
Puttaswamy v. Union of india minority perceptions became the law. In justice K. S.Puttaswamy v. Union of Indiaa dissent on article 110demonstrated that procedure is a guard of rights and not a technical footnote. In ”KedarNath v. union of India”[20] and Shreya Singhal v. unionof Indiathe practice of text and norms maintained speech liberal and legislations constitutional . A brief comparative review of the US verifies that classic dissents such as justice Harlan’s in ”plessy v. ferguson”[21] can inform courts decade after they have been written. The pragmatic challenge before us is not to minimize dissent but to organise it well. Conclude judgments with a plain holdings , charts, compose separate opinions with definite , workable standards, and instruct readers how to extract binding rules. Done in such a manner, dissent maintains the moral essence and the legal syntax of the constitution, keeping India’s constitutional discourse honest , flexible and true to justice as well as law.[22]
[1] A K Gopalan v. State of Madras AIR 1950 SC 27
[2]Menka Gandhi v. Union of India AIR 1978 SC 597
[3]Kharak Singh v. state of Uttar pradesh, AIR 1963 SC 1295
[4] Justice K.S. Puttaswamy and Ors. vs. Union of India (UOI) and Ors MANU/SC/1604/2017
[5] ADM Jabalpur v. Shivkant Shukla AIR 1976 SC 1207
[6]KedarNath v. state of Bihar AIR 1950 SC 27
[7]Const. of India art. 110.
[8]The Nature of Dissent in the Indian Judiciary, CivilsDaily (Apr. 20, 2025), https://www.civilsdaily.com/news/the-nature-of-dissent-in-the-indian-judiciary/
[9]KedarNath v. state of Bihar AIR 1950 SC 27
[10] Indian Penal Code, No. 45 of 1860, § 124A.
[11] Shreya Singhal. Union of India AIR2015SC1523
[12]Const. of India art. 14, 19 &21.
[13] Const. of India art. 110.
[14]Indian Journal of Constitutional Law, vol. 10 (2023), NALSAR University of Law, https://nalsar.ac.in/images/IJCL_Vol.10.pdf
[15] Justice K.S. Puttaswamy and Ors. vs. Union of India (UOI) and Ors MANU/SC/1604/2017
[16] Indian Penal Code, No. 45 of 1860, § 124A.
[17]Information Technology Act, No. 21 of 2000, § 66A.
[18]Shreya Singhal v. union of India AIR2015SC1523
[19]Gautam Bhatia, Democracy and Dissent in the Indian Supreme Court’s Election Speech Verdict, IACL-IADC 6.
[20]KedarNath v. state of Bihar AIR 1950 SC 27
[21] Plessy v. Ferguson, 163 U.S. 537 (1896)
[22]ApurvaVishwanath, In verdicts with dissent, Supreme Court judges refer to and rebut each other — via their opinions, The Indian Express (Nov. 16, 2024), https://indianexpress.com/article/india/in-verdicts-with-dissent-sc-judges-refer-to-and-rebut-each-other-via-their-opinions-9672202/
Author’s Bio- Sayuj Raghuwanshi, 2nd year student of BBA LLB, from Symbiosis law school, NOIDA.
