What is a Dissenting Opinion?

A **dissenting opinion** (also called a "dissent" or "minority opinion") is a written opinion delivered by one or more judges who sit on a bench hearing a case but disagree with the conclusion reached by the **majority** of the bench. While the majority opinion becomes the binding judgment of the court, the dissenting opinion records the minority judge's disagreement, their reasoning, and the alternative conclusion they would have reached.

In simple terms, a dissenting opinion is a judge saying "I disagree with the majority's decision, and here is why."

Legal Framework

Constitutional Basis

Indian law permits and recognises dissenting opinions in multi-judge benches. When the Supreme Court or a High Court hears a case through a bench of two or more judges, each judge may deliver their own opinion. The decision of the court is determined by the **majority**.

- **Article 145(5) of the Constitution** provides: "No judgment and no such opinion shall be delivered by the Supreme Court save with the concurrence of a majority of the Judges present at the hearing of the case, but nothing in this clause shall be deemed to prevent a Judge who does not concur from delivering a dissenting judgment or opinion."

This constitutional provision explicitly guarantees the right of a Supreme Court judge to deliver a dissenting opinion.

High Courts

Similarly, in High Courts, when a case is heard by a Division Bench (two judges) or a Full Bench (three or more judges), individual judges may deliver separate opinions, including dissenting opinions. If a Division Bench is equally divided (split verdict), the matter is referred to a **third judge** for resolution.

Privy Council Tradition vs. Supreme Court Practice

Under the **Privy Council** (which served as India's highest court of appeal before independence), dissenting opinions were not permitted — the Council spoke with one voice. The Indian Constitution deliberately departed from this tradition, adopting the American model where individual justices can express their views, including disagreements.

Significance of Dissenting Opinions

Not Binding as Precedent

A dissenting opinion does **not** constitute the law of the case. It is not binding on lower courts and does not create a precedent. Only the **majority opinion** — specifically the **ratio decidendi** (the legal principle underlying the decision) — is binding.

Influence on Future Law

Despite not being binding, dissenting opinions carry enormous significance in legal development:

1. **Today's dissent may be tomorrow's majority.** Many landmark legal principles were first articulated in dissenting opinions before being adopted by future benches. Justice Subba Rao's dissent in **Kharak Singh v. State of U.P. (1963)** regarding the right to privacy was vindicated decades later in **Justice K.S. Puttaswamy v. Union of India (2017)**, when a nine-judge bench unanimously recognised the right to privacy as a fundamental right.

2. **Legislative reform.** Dissenting opinions sometimes prompt legislative action by highlighting flaws in existing law that the majority was unwilling to address.

3. **Academic and jurisprudential value.** Dissents contribute to legal scholarship, providing alternative frameworks for interpreting law.

4. **Check on the majority.** The existence of a well-reasoned dissent acts as a check on the majority, forcing them to engage more rigorously with counterarguments and strengthen their own reasoning.

Famous Dissents in Indian Legal History

#### Justice H.R. Khanna's Dissent in ADM Jabalpur (1976)

Perhaps the most celebrated dissent in Indian constitutional history. In **Additional District Magistrate, Jabalpur v. Shivkant Shukla (1976) 2 SCC 521** (the Habeas Corpus Case during the Emergency), the majority of a five-judge bench held that during a proclamation of Emergency, citizens could not approach courts for enforcement of the right to life and personal liberty under Article 21. **Justice H.R. Khanna** dissented, holding that the right to life cannot be suspended even during an Emergency. His dissent is widely regarded as one of the finest vindications of individual liberty, and the majority's view was effectively overruled by the **44th Constitutional Amendment, 1978**, which prevents suspension of Article 21 during an Emergency.

#### Justice Fazl Ali's Dissent in A.K. Gopalan (1950)

In **A.K. Gopalan v. State of Madras AIR 1950 SC 27**, while the majority adopted a narrow view of fundamental rights, **Justice Fazl Ali** dissented, arguing for a broader interpretation where different fundamental rights should be read together rather than in isolation. This broader approach was eventually adopted by the Supreme Court in **Maneka Gandhi v. Union of India (1978)**, where the Court held that Articles 14, 19, and 21 are interconnected.

#### Justice D.Y. Chandrachud's Dissent in Indian Young Lawyers Association (2018)

In the Sabarimala case, while the majority held that the ban on women of menstruating age entering the temple was unconstitutional, **Justice Indu Malhotra** dissented, arguing that the Court should not interfere with essential religious practices. This dissent influenced the referral of the case to a larger bench for reconsideration.

When Does This Term Matter?

In Constitutional Law

Dissenting opinions are most significant in constitutional cases where fundamental rights, government powers, and societal values are at stake. Constitutional law is particularly fertile ground for dissents because reasonable judges can legitimately differ on how to interpret broad constitutional provisions.

In Legal Education and Scholarship

Law students and scholars study dissenting opinions to understand the full range of legal arguments on an issue. Dissents often provide more creative, forward-looking analysis than the majority opinion.

When Seeking Overruling of Precedent

A lawyer seeking to persuade a larger bench to overrule an earlier decision will frequently cite the dissenting opinion from the earlier case as authoritative reasoning supporting a different conclusion.

In Public Discourse

Major dissenting opinions — particularly in cases involving civil liberties, social justice, and government accountability — often resonate with public sentiment and shape public discourse on legal issues.

Practical Examples

Split Verdict in a Division Bench

A Division Bench of the High Court hears a criminal appeal. One judge upholds the conviction, while the other judge holds that the evidence is insufficient and would acquit the accused. Since the bench is equally divided, the matter is referred to a third judge under Section 392 CrPC. The third judge agrees with the judge who favoured acquittal, resulting in a 2-1 decision to acquit.

Dissent in a Constitutional Bench

A five-judge Constitution Bench of the Supreme Court hears a challenge to the validity of a law. Three judges uphold the law, while two judges find it unconstitutional. The majority opinion (3-2) becomes the law, but the minority opinion is published alongside. In a future case, a seven-judge bench may reconsider the issue, potentially adopting the reasoning of the earlier dissent.

Frequently Asked Questions

Does a dissenting opinion have any legal force?

A dissenting opinion does not have binding legal force — it does not establish precedent, and lower courts are not required to follow it. However, it has significant **persuasive value**. Dissenting opinions have influenced later benches to reconsider and overrule majority decisions, and they provide powerful arguments that lawyers can cite when seeking to change the law.

Can a dissenting opinion become the law in the future?

Yes. When a later, larger bench reconsiders the same legal question, it may adopt the reasoning of the earlier dissent and overrule the previous majority. This has happened multiple times in Indian constitutional law, most notably with Justice Khanna's dissent in the ADM Jabalpur case and Justice Fazl Ali's dissent in A.K. Gopalan.

What happens when a bench is equally divided?

When a Division Bench (two judges) is equally split, the matter is referred to a **third judge** whose opinion determines the outcome. When a larger bench is equally divided (rare, as benches typically have an odd number of judges), the case may be referred to a still larger bench for resolution. In appeals from the High Court, an equal split in the Supreme Court results in the High Court's decision being upheld.

Is a concurring opinion the same as a dissenting opinion?

No. A **concurring opinion** is written by a judge who agrees with the majority's conclusion (the result) but disagrees with the reasoning or wishes to add supplementary reasons. A **dissenting opinion** disagrees with the conclusion itself. Both are separate opinions written by individual judges, but they differ fundamentally in whether they support or oppose the majority's final decision.

Dissenting Opinion