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Judicial Majoritarianism: The Importance of Dissenting Opinions in Constitutional Cases

Relevance: GS paper 2, Indian Polity

Judicial Majoritarianism

  • Numerical majorities are important in cases involving substantial interpretation of constitutional provisions.
  • Constitutional Benches are set up with five or more judges to ensure numerical majorities.
  • No judgment can be delivered except with the concurrence of a majority of the judges, but judges are free to deliver dissenting judgments.

Debate on Judicial Majoritarianism

  • Jeremy Waldron questions why judges have to resort to head counting to resolve disagreements.
  • Differences in judicial decisions can be attributed to a difference in methodology or “judicial hunches”.
  • Meritorious minority decisions receive little weightage in terms of outcomes.
  • The rate of dissent is subject to influences and can call into question the efficiency of head-counting procedures.

Gap in Understanding

  • Ronald Dworkin proffers alternatives, but the rationales underlying head-counting in judicial decision-making need to be questioned.
  • The absence of a critical discourse on judicial majoritarianism represents a gap in our knowledge regarding the Supreme Court.

Judicial Cases

  • A.D.M. Jabalpur v. Shivkant Shukla (1976) – dissenting opinion of Justice H.R. Khanna upholding right to life and personal liberty.
  • Kharak Singh v. State of U.P. (1962) – dissenting opinion of Justice Subba Rao upholding the right to privacy.
  • K.S. Puttaswamy v. UOI (2017) – judicial stamp of approval for the dissenting opinion in Kharak Singh.

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