Introduction
Constitutional law develops not only through the judgments of the majority but also through the voices that stand apart. Separate opinions, whether in concurrence or dissent, reflect the diversity of judicial reasoning in constitutional cases. While only majority opinions carry binding force, separate opinions have persuasive value. They bring forward alternative interpretations, highlight risks in prevailing approaches, and safeguard principles that may later become central to constitutional doctrine.
The Indian constitutional experience illustrates this well. Justice H. R. Khanna’s dissent in ADM Jabalpur v. Shivkant Shukla was overlooked at the time but has since been recognized as a moral guide for constitutional values, reaffirmed decades later in Puttaswamy v. Union of India.[1] Similarly, the multiple separate opinions in Kesavananda Bharati v. State of Kerala shaped the idea of the basic structure of the Constitution, which has since become a defining principle of Indian constitutional law.[2] These examples show that the value of separate opinions lies not in their immediate authority but in their long-term influence on legal thought and institutional practice.
Comparative experience reinforces this view. In the United States, dissents by Justice Holmes in free speech cases later became the accepted position of the Supreme Court.[3] In South Africa, dissent is seen as a legitimate and constructive part of judicial dialogue.[4] These experiences confirm that separate opinions can enrich constitutional jurisprudence rather than weaken it.
This paper aims to explore the role of separate opinions in constitutional law with special reference to India. It asks whether such opinions dilute judicial authority or instead strengthen the constitutional project by preserving plurality and guiding future jurisprudence.
Rationale
Separate opinions occupy an unusual position in constitutional law. They lack binding authority but often carry deep moral and intellectual weight. In India, dissents such as Justice Khanna’s in ADM Jabalpur and concurring opinions in Kesavananda Bharati have shaped the constitutional order long after they were written. Their influence shows that law does not develop only through majorities but also through minority voices that anticipate future constitutional needs.
Why Studying Separate Opinions Is Important
- They reveal the internal diversity of constitutional reasoning within the judiciary, which strengthens transparency and public trust.
- They act as reservoirs of ideas that can guide later courts when social or political conditions change.
- They illustrate how constitutional law is a dialogue across generations rather than a static set of rules.
The rationale of this paper is therefore to examine the significance of separate opinions in shaping constitutional law in India and to place this discussion in a comparative frame. By doing so, it aims to show that dissents and concurrences are not marginal but central to the constitutional project.
Indian Developments
Kesavananda Bharati v. State of Kerala
The Kesavananda Bharati v. State of Kerala case,[5] though primarily concerned with determining the limits of Parliament’s amending power, holds profound significance for the Right to Equality in India. The Supreme Court, through its landmark articulation of the Basic Structure Doctrine, established that certain essential principles form the foundation of the Constitution and cannot be altered or destroyed by any amendment. Among these principles, equality embodied in Articles 14, 15 and 16 was recognized as central to the idea of justice, fairness and the rule of law.[6] The judgment ensured that Parliament cannot enact constitutional changes that undermine the equal status and protection guaranteed to all individuals.
In this sense, the decision fortified the Right to Equality against arbitrary legislative or executive actions that could threaten the balance between state power and individual rights. By doing so, the Court preserved the Constitution’s identity as a democratic and egalitarian framework that upholds fairness, prevents discrimination and promotes inclusivity in governance and public life.[7] The Kesavananda Bharati ruling therefore stands as a constitutional safeguard ensuring that equality remains a living and unassailable value at the heart of India’s legal and political system.
Justice Khanna’s Dissent in ADM Jabalpur
The ADM Jabalpur v. Shivkant Shukla case,[8] commonly known as the Habeas Corpus Case, was decided during the Emergency proclaimed in India from June 25, 1975 to March 21, 1977. During this period, the government suspended certain fundamental rights including the right to life and personal liberty under Article 21 of the Constitution. The main issue before the Supreme Court was whether a citizen could approach the court for a writ of habeas corpus to challenge unlawful detention when the enforcement of Article 21 was suspended. The majority of the bench held that during an emergency, citizens do not have the right to seek enforcement of fundamental rights, and therefore, courts could not issue writs of habeas corpus. This interpretation effectively allowed the government to detain individuals without trial or judicial scrutiny during the emergency period.
Justice Hans Raj Khanna delivered a powerful dissenting opinion, stating that the right to life and personal liberty is inherent and not granted by the Constitution, and that such a right cannot be suspended by any authority. He emphasized that even in times of national crisis, the rule of law must prevail and the judiciary must remain the guardian of individual liberty. Although the majority judgment favored the state, it was widely criticized for undermining constitutional morality and human rights.
The ADM Jabalpur decision has since been regarded as one of the darkest moments in India’s constitutional history because it placed executive power above the rights of citizens. In later years, the Supreme Court itself disapproved of the decision, particularly in cases such as Justice K.S. Puttaswamy v. Union of India (2017), where it reaffirmed that the right to life and personal liberty cannot be taken away even during emergencies. The case thus serves as a historical lesson on the importance of judicial independence and the protection of fundamental rights, ensuring that no government can override the Constitution’s core principles of justice, liberty and equality.
Navtej Singh Johar’s Case
The Navtej Singh Johar v. Union of India case was a landmark judgment in which the Supreme Court of India read down Section 377 of the Indian Penal Code to decriminalize consensual sexual acts between adults in private.[9] The Court held that criminalizing same-sex relations violated fundamental rights under Articles 14, 15, 19 and 21, including the right to equality, non-discrimination, freedom of expression and personal liberty. It recognized sexual orientation as an intrinsic aspect of identity and emphasized that constitutional morality must protect the dignity and autonomy of LGBTQ+ individuals even against majoritarian societal norms.[10] The judgment affirmed that laws which disproportionately affect marginalized communities or intrude upon private consensual conduct cannot be upheld. By safeguarding the rights of sexual minorities, the decision reinforced the principle of equality before the law and equal protection of laws as central to India’s constitutional framework.
Justice K.S. Puttaswamy (Retd.) v. Union of India (2017)
In the landmark judgment delivered on August 24, 2017, a nine-judge bench of the Supreme Court of India unanimously recognized the right to privacy as a fundamental right under Articles 14, 19, and 21 of the Constitution.[11] This decision overruled previous judgments in M.P. Sharma v. Satish Chandra (1954) and Kharak Singh v. State of Uttar Pradesh (1962), which had denied the existence of such a right. The Court held that privacy is intrinsic to individual dignity and autonomy, forming an essential component of the right to life and personal liberty.[12] This ruling has profound implications for the Right to Equality, as it ensures that all individuals, regardless of their sexual orientation or gender identity, are entitled to the same constitutional protections against discrimination and unlawful interference. By affirming that privacy encompasses personal choices related to one’s body, relationships, and identity, the judgment reinforces the principle that every citizen is equal before the law and entitled to equal protection of the laws.
Comparative Developments
In comparing the treatment of separate opinions and judicial pluralism across different legal systems, the United States demonstrates a robust culture of concurring and dissenting judgments, considering them essential not only for immediate judicial reasoning but also as influential instruments for shaping the future trajectory of law. Landmark dissents, such as those in civil rights or constitutional interpretation cases, have historically provided alternative frameworks that later courts adopt, illustrating the enduring impact of dissenting voices on the evolution of legal norms.
United States Approach
- Strong culture of concurring and dissenting judgments
- Dissents influence future law reform and judicial interpretation
- Seen in landmark civil rights and constitutional cases
United Kingdom Approach
In contrast, the United Kingdom has traditionally emphasized collective majority judgments to ensure stability, coherence, and predictability in the law, reflecting a strong preference for maintaining the authority of precedent and avoiding public perception of judicial disunity. Nevertheless, in recent decades, UK courts, including the Supreme Court, have increasingly recognized the value of separate opinions for enhancing transparency and providing insight into divergent judicial reasoning, particularly in complex constitutional or human rights cases.
South Africa’s Integrated Approach
South Africa, especially under its post-apartheid Constitution of 1996, adopts a more integrated approach that actively encourages detailed concurrences and dissents in its Constitutional Court. These separate opinions serve as a form of judicial dialogue that informs future courts, strengthens democratic constitutionalism, and contributes to the development of rights-based jurisprudence, particularly in areas such as equality, dignity, and socio-economic rights.
Collectively, the practices in these three jurisdictions illustrate a spectrum in which courts seek to balance the need for stability, clarity, and authority with the benefits of intellectual diversity, transparency, and the evolution of constitutional law, demonstrating that separate opinions can be both a safeguard for minority perspectives and a tool for progressive legal development.
Critical Discussion
Critics of separate opinions in judicial decisions argue that they may weaken the authority of the court and undermine the certainty of law, as conflicting views can create ambiguity for lower courts, litigants, and the public, while publicly aired disagreements may project judicial disunity and erode confidence in the institution.
However, proponents contend that separate opinions preserve intellectual diversity within the judiciary and serve as valuable constitutional resources for future generations by documenting alternative interpretations of law and constitutional principles.
- Enhance democratic legitimacy through transparency
- Encourage richer debate on constitutional values
- Strengthen minority viewpoints in judicial reasoning
In India, the Supreme Court has gradually recognized the value of dissents and concurring opinions, with historical instances such as Justice Khanna’s dissent in ADM Jabalpur and concurring views in Kesavananda Bharati shaping later doctrine. More recent cases, including Justice K.S. Puttaswamy v. Union of India and Navtej Singh Johar v. Union of India, illustrate how constructive plurality through multiple concurrences can enrich constitutional interpretation and provide a foundation for future legal and social developments.
Conclusion & Suggestions
The judiciary must strike a careful balance between majority opinions and separate opinions to ensure both stability and innovation in constitutional interpretation. Majority opinions provide clarity and consistency in the law, creating a stable and predictable legal framework that guides courts, government institutions and citizens alike.
At the same time, separate opinions, whether concurring or dissenting, serve as vital instruments for intellectual exploration and jurisprudential innovation. They allow judges to present alternative reasoning, critique the majority’s approach and highlight potential concerns or broader principles that may not be fully addressed in the majority opinion.
Far from being threats to judicial authority or the rule of law, separate opinions function as assets to a constitutional democracy by fostering transparency, encouraging debate on complex issues and preserving diverse perspectives that can inform and shape future legal developments. By maintaining this balance, courts can uphold the authority and stability of the law while ensuring that constitutional interpretation remains dynamic, responsive and capable of adapting to evolving societal values.
Bibliography
Books & Articles
- Basu, Durga Das. Introduction to the Constitution of India. LexisNexis, 2020.
- Seervai, H.M. Constitutional Law of India. Universal Law Publishing, 2019.
- Sathe, S.P. Judicial Activism in India: Transgressing Borders and Enforcing Limits. Oxford University Press, 2002.
- Gupta, Arvind. Judicial Dissent in Constitutional Democracies. Indian Law Review, 2018.
- Klug, Heinz. Constitutional Rights and Judicial Review in Comparative Perspective. Cambridge University Press, 2010.
Cases
- Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr., (1973) 4 SCC 225.
- ADM Jabalpur v. Shivkant Shukla, (1976) 2 SCC 521.
- Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
- Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.
- Sankari Prasad Singh Deo v. Union of India, AIR 1951 SC 458.
- C. Golaknath v. State of Punjab, AIR 1967 SC 1643.
Additional References
- ADM Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207; Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.
- Justice K. S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.
- United States v. Schwimmer, 279 U.S. 644 (1929).
- S v. Makwanyane, 1995 (3) SA 391 (CC).
- Kesavananda Bharati v. State of Kerala & Anr (1973) 4 SCC 225.
- ibid.
- id.
- ADM Jabalpur v. Shivkant Shukla, 1976 (2) SCC 521.
- Navtej Singh Johar v. Union of India, AIR 2018 SC 4321.
- ibid.
- K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
- ibid.
