Famous Dissents & Overrulings

Why Dissents Matter

"An appeal to the brooding spirit of the law"

Charles Evans Hughes, later Chief Justice of the United States, described a dissent as "an appeal to the brooding spirit of the law, to the intelligence of a future day". Several Indian dissents became law: Fazl Ali's in Gopalan, Subba Rao's in Kharak Singh and H.R. Khanna's in ADM Jabalpur. In Romila Thapar v. Union of India (2018) Justice D.Y. Chandrachud, dissenting, called dissent "a symbol of a vibrant democracy" and "the safety valve of democracy".

• Hughes: "an appeal to the brooding spirit of the law".
• Chandrachud J: dissent is "the safety valve of democracy" (Romila Thapar, 2018).

1950 → 1970 → 1978

Gopalan → Cooper → Maneka

How Fazl Ali's dissent won

In A.K. Gopalan (1950) the majority held that each fundamental right is a self-contained code, and Justice Fazl Ali dissented. R.C. Cooper (1970) rejected the majority's approach, and Maneka Gandhi (1978) completed the reversal by reading Articles 14, 19 and 21 together and requiring every procedure to be fair, just and reasonable.

1951 → 1973 → 1980

The Amending Power Saga

Shankari Prasad to Minerva Mills

Shankari Prasad (1951) and Sajjan Singh (1965) held that Parliament can amend fundamental rights. Golak Nath (1967) reversed them. Parliament answered with the 24th Amendment (1971). Kesavananda Bharati (1973) overruled Golak Nath and upheld the 24th Amendment but introduced the basic structure limit. Parliament tried to abolish that limit through the 42nd Amendment (1976), and Minerva Mills (1980) struck that attempt down.

1976 → 2017

ADM Jabalpur → Puttaswamy

Forty-one years to set the record straight

In Puttaswamy (2017) Justice D.Y. Chandrachud, whose father had been in the ADM Jabalpur majority, wrote that the majority judgments in ADM Jabalpur were "seriously flawed", that life and personal liberty are inalienable, and that the case was "expressly overruled". H.R. Khanna's dissent was vindicated.

• D.Y. Chandrachud's father, Y.V. Chandrachud, had been in the ADM Jabalpur majority.

2013 → 2018

Suresh Kumar Koushal → Navtej Singh Johar

Section 377

Suresh Kumar Koushal (2013) restored the criminalisation of consensual homosexual acts that the Delhi High Court had struck down. Five years later a five-judge bench in Navtej Singh Johar (2018) overruled it unanimously.