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What does the history of dissent look like?

In the second volume of his landmark book, Discordant Notes, Rohinton Nariman brings to light ground-breaking cases and judgements which made remarkable additions to our Constitution, improved and improvised some laws and most importantly, gave the space to the citizens of this country to be able to think, re-think and re-learn freely.


Charting out the history of the dissenting judgements in the history of the Supreme Court of India, Nariman begins by quoting Professor Allan Hutchinson’s Laughing at the Gods: Great Judges and How They Made the Common Law, where he speaks of ‘judicial greatness’ as:


‘Great judges seek to make a critical accommodation with the legal tradition by combining heresy and heritage in a playful judicial style; they refuse to be hampered by customary habits of judicial mind. For them, law is not something to be mastered. It is a sprawling tableau of transformation in which experimentation and improvisation are valued as much as predictability and faithfulness to existing rules and ideas. They see possibilities and make moves that others overlook. Great judges flaunt conventional standards in the process of remaking them; their judgements are the exceptions that prove the rule. And, once they have done what they do, others are less able to view the world in the same way again.’

Discordant Notes by Rohinton Nariman
Discordant Notes || Rohinton Nariman


He then mentions that it is in this sense that he chose the four great dissenters for this book. Overlooking other prominent judges who wrote numerous dissents in their lifetime, he chose to write about the ones who might have given only six dissents, for example, but had brilliant oversight packed in them, insights that changed the course of future judgements in India.


Nariman named these four dissenters, the ‘Four Horsemen of the Apocalypse’ because just like in Book Six, ‘Revelation’ of the New Testament in the Bible, these are the people who give the world a chance to repent before they are consigned to the ashes. He states how each one of these four dissenters fulfills this role, some of them prophesying doom if their dissents do not become the law, and others offering a chance of redemption, if in the future, their view is accepted in preference to that of majority.


One of the first cases discussed in the second volume of Discordant Notes is the Keshava Madhava Menon v. State of Bombay (1951) case dissented by judge Sir Saiyid Fazl Ali. What came up for consideration before the Supreme Court was the interpretation of the expression ‘void’ contained in Article 13 (1) of the Constitution of India. The majority judgement, delivered by S.R. Das, J., on behalf of the three learned judges of the court, held that Article 13 (1) does not make existing laws which are inconsistent with fundamental rights void ab initio, but only renders such laws ineffectual with respect to the exercise of fundamental rights on and after the date of commencement of the Constitution, Article 13 (1) having no retrospective effect. Therefore, if prosecution for a criminal act was commenced before the Constitution came into force, it can be proceeded with according to that law, even after the commencement of the Constitution.


Fazl Ali, J., joined Mukherjea, J., dissented. For reference, Article 13 (1) reads as follows:


‘All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.’


Fazl Ali, J referred to the original draft of the Constitution, in which the words ‘shall stand abrogated’ were used instead of ‘shall be void’ in Article 13 (1). He then observed that the Constitution makers used various expressions to convey precisely and thoroughly what they meant. While some articles used ‘invalid’, ‘ceased to have effect’ and ‘shall be inoperative’, ‘void’ is used only in two articles 13 (1) and 154 – and both of them deal with cases where laws are repugnant to other laws. Hence, the learned judge concluded that there is a precision and thoroughness of the framers of the Constitution with the strong sense in which the word ‘void’ has been used and cannot be completely ignored.


Nariman noted that this case is an important judgment, which was later followed in Behram Khurshid Pesikaka v. State of Bombay (1955) and Bhikaji Narain Dhakras v. State of M.P. (1955), as forming the foundation for what became known as the ‘Doctrine of Eclipse’, i.e. that pre-constitutional law cannot be said to be void from inception, but only ineffective if it violates a fundamental right, the fundamental right casting a shadow over such law.


Rohinton Nariman discusses and analyses many more such interesting cases and judgements and enlightens us with the kind of roads they fractured, mended and laid the foundation of, in this remarkable book. It speaks to anyone who decides to speak for themselves or for others, who decides to obtain knowledge in multi-dimensional spheres and most notably, for someone who decides to learn and re-learn.

In Conversation with Osama Siddique

Osama Siddique has been a Rhodes scholar at Oxford, a lawyer in New York and Lahore, a policy instructor in various countries. He is also a legal scholar, university teacher and reform consultant in Pakistan, and a successful doctoral candidate and visiting professor at Harvard Law School. His most recent book is an acclaimed and multiple award-winning critical legal history of postcolonial justice systems. We spoke to him about his debut novel Snuffing Out the Moon.
 Below are the questions we asked him.
You are and have been a very successful lawyer and legal scholar.  Why did you decide to write a novel?
There are many kinds of legal discourses of course that allow much room for critical expression. Quite apart from more conventional work, as a lawyer and an academic I have always been particularly intrigued by how law can be and is manipulated by the powerful against the disempowered. Regardless of which era we speak about what goes by the name of law has always been a strong weapon for those who can use it – for better or for worse. Indeed I have explored this theme in my legal scholarship. There are, however, certain limits on expression imposed by extant conventions of style, structure and methodology. Fiction on the other hand is a very vast, rich and multifarious terrain that provides tremendous flexibility and license to explore this and various additional themes that I dwell on in my novel – themes that I had always wanted to write about. Themes ranging, for instance, from ancient political landscapes to omens of impending evil to lives of petty criminality to literature as a weapon of protest to social media as a medium for hate mongering to environmental apartheids of the near future. Only fiction allows engagement with all this in one book. Such is its largesse. Hence the novel.
Why did you situate the book in these particular six epochs of time?
In large part because having blessed access to their archaeological sites and cultural artifacts I have been greatly fascinated by them since childhood. I continue to fondly visit them, read about them, live amidst them. Mohenjodaro also because it continues to be such an enticing enigma and unsolved mystery. The Gandharan civilization because it has left such an exquisite artistic and architectural imprint on the Pakistani landscape. Lahore – my beloved city – appears in three contiguous eras, which are all reflected in its hybrid culture and built heritage. And the near future is of course the source of tremendous curiosity and indeed concern to all of us – given the highly troubling times and the various political, environmental and civilizational crises that we currently face as humankind.
Somewhere in the book you say something like: “all eras are driven by the same hopes and fears and passions and we continue to make the same mistakes.” — Could you elaborate on this and also your concept of “time.”?
While one can surely detect evolution in various spheres of human endeavor – political structures, organized religion, modes of technology – it does occur to me that across the ages our fundamental aspirations and imperatives remain very closely aligned, if not identical. It is fascinating to think, for instance, how hope, fear, love, hate, dissent and the resulting conflicts drive people to act in such similar ways, regardless of whether we speak of today’s milieu or one of four thousand years ago, from whatever we know of that distant era. Naturally, it causes one to wonder whether we are caught up in a constant cycle of repetition. Civilizations come, flourish, decline and ultimately vanish. Whether time is linear or cyclical. Whether we are headed somewhere or will the wheel of time continue to turn and turn till one day our kind will simply be no more. That we will simply vanish. Without even a whimper, let alone a bang. Without any explanation, let alone an apology.
What are your thoughts on the concept of “evil”?
Evil is such a vital and fascinating concept in every religious and cultural tradition as well as manifest, however you define it, in so many human catastrophes through the ages. One of the most compelling questions remains whether evil is just another name for our baser instincts, distinct external influences that corrupt and corrode us and compel us to do abhorrable things, or an actual physical embodiment – a virtual devil. What causes us to indulge in devilry and why has humankind failed in putting a stop to murders, pogroms, genocides, travesties and wars. These questions provide a vital undercurrent to my overall narrative and evil manifests itself mysteriously and multifariously in the lives of the different characters. Quite apart from the more analytical dimensions there is also something very emotive, something very sinister and forbidding about the concept that impacts our senses in a remarkable manner. The fear and foreboding evoked by the concept of evil has been depicted so powerfully in many great pieces of literature and it has always been something that I also wanted to write about.
Your protagonists are non-conformists who dissent and then pay a price for it.  Can you tell us more about choosing protagonists who are dissenters and the importance of dissent in human history?
Arguably, as critically as ever before in out history we face the challenges of curtailment and censorship of free thought and speech. What is also obvious is a globe-wide shift to harder governments, to despots, officially sanctioned histories, blind dogma and also now, alternative facts. The present epoch is as Orwellian as it can get. Meaningful dissent, therefore, is a precious but also much maligned virtue and hence all the more worthy of preservation. Mine is just one modest endeavor to underline how vital dissent is for societal sustenance and integrity. Even otherwise, dissenters make much more compelling and effective protagonists than conformists. Dissent has contributed tremendously to history and brought about significant turning points and breakthroughs in human thought and achievement. And yet the dissenters have often paid a tremendous personal price, which makes their entire endeavor all the more heroic. There is thus no way that I would have been tempted to choose protagonists who are not dissenters. Having said that those who habitually conform and capitulate are also curious in their own way. Perhaps in my next book if there is one.

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