Justice BV Nagarathna's tryst with dissent
Elevated to the Supreme Court in 2021, justice Nagarathna’s judgments in the top court reflect a deep-seated belief in the rule of law
In a judiciary where consensus often prevails, Justice BV Nagarathna has emerged as a powerful voice of dissent. Poised to be the first woman Chief Justice of India in September 2027, justice Nagarathna's dissents in key cases have showcased her intellectual rigour and moral courage.
The judge’s bold and principled stands in high-profile constitution bench cases, ranging from demonetisation to hate speech, and on Thursday, in the mineral rights case, have cemented her reputation as a formidable defender of constitutional values even as she carves a niche for herself with her unwavering commitment to justice, often expressed through her dissenting opinions.
Elevated to the Supreme Court in 2021, Nagarathna’s judgments in the top court reflect a deep-seated belief in the rule of law and the importance of upholding democratic values, even when it means standing against the tide of majority opinion.
Delving into some of her most notable dissents will showcase her fearless approach and undeterred stance on critical legal issues.
Demonetisation ruling
Nagarathna's dissent in the demonetisation case in January 2023 stands out as a landmark moment in her judicial career. In a 4-1 ruling, she was the lone voice against the majority’s decision to uphold the Centre’s demonetisation decision.
Her 124-page judgment critiqued the government's approach, emphasising that a matter of such magnitude affecting nearly 86% of the currency in circulation could not be implemented via an executive notification.
Nagarathna underscored that the Centre was obligated to present the proposal for demonetisation in parliament, allowing for a meaningful debate and discussion. She held: “On a matter as critical as demonetisation, having a bearing on nearly 86% of the total currency in circulation, the same could not have been carried out by way of issuance of an executive notification. A meaningful discussion and debate in the Parliament on the proposed measure would have lent legitimacy to the exercise.” She asserted the role of parliament as the cornerstone of democracy, stating that it must be involved in decisions of such magnitude to reflect the will of the people.
Her dissent highlighted procedural lapses, noting that the central board of the RBI had not been given sufficient time to assess the proposal independently. Justice Nagarathna’s judgement was a powerful reminder of the necessity for legislative scrutiny in matters of national importance, reinforcing the role of parliament as the fulcrum of democracy
The hate speech case
In another significant dissent in January 2023, Nagarathna addressed the issue of hate speech. The constitution bench’s 4-1 ruling avoided a comprehensive discussion on the implications of hate speech and held that no additional accountability or a legal obligation can be cast upon the public functionaries with respect to obnoxious statements made by them. Justice Nagarathna, however, took a firm stand, underscoring the greater responsibility of public figures and celebrities in refraining from incendiary statements.
She asserted: “Public functionaries and other persons of influence and celebrities, having regard to their reach, real or apparent authority and the impact they wield on the public or on a certain section thereof, owe a duty to the citizenry at large to be more responsible and restrained in their speech.”
Drawing on the insights of legal scholar Michael Rosenfeld, the judge highlighted the amplified impact of statements made by influential individuals. Justice Nagarathna’s judgment was a clarion call for greater accountability, stating: “They are required to understand and measure their words, having regard to the likely consequences thereof on public sentiment and behaviour, and also be aware of the example they are setting for fellow citizens to follow.”
Emphasising the significance of free speech in a constitutional democracy, Nagarathna maintained that this constitutional right includes the right to dissent, disagree and adopt varying and individualistic points of view. “In fact, the right to dissent is the essence of a vibrant democracy, for it is only when there is dissent that different ideas would emerge which may be of help or assist the Government to improve or innovate upon its policies so that its governance would have a positive effect on the people of the country which would ultimately lead to stability, peace and development which are concomitants of good governance,” the judge stressed.
Her dissent underscored that the right to free speech also encompasses the duty to maintain dignity and respect, particularly for public figures
The Mines and Minerals (Development and Regulation) Act case
In her dissent in the MMDR Act case, Nagarathna tackled the contentious issue of mineral royalty. While the majority of eight judges ruled that states have the legislative competence to levy taxes on minerals and mineral-bearing lands in addition to the royalty imposed by the Center, she held that royalty is not merely a contractual payment but a statutory levy under Section 9 of the MMDR Act, akin to a tax.
Her extensive 193-page judgment critiqued the majority’s view, calling for a broad interpretation of Entry 50 to include parliamentary restrictions on state legislation regarding mineral rights. Justice Nagarathna cautioned against states engaging in a “race to the bottom” to derive additional revenue, which could destabilise the national market.
She highlighted the adverse effects of treating royalty merely as a tax, warning that such a stance could lead to uneven mineral development, increased costs for industries reliant on minerals, and overall economic instability. Justice Nagarathna’s judgment emphasised the need for legal stability and uniformity in mineral development policies, ensuring that states do not bypass parliamentary limitations.
The GM crops case
Nagarathna’s dissent in the GM crops case earlier this week further exemplifies her rigorous approach to environmental and public health concerns. She criticised the Genetic Engineering Appraisal Committee (GEAC) for its procedural lapses and undue haste in approving the environmental release of GM mustard. Her judgement on the two-judge bench was scathing, highlighting the lack of consultation with critical bodies like the Indian Council of Medical Research and the Ministry of Health.
Underscoring the importance of adhering to statutory protocols and the principle of public trust, her ruling on July 23 pointed out that the GEAC’s decision violated the right to a safe and healthy environment under Article 21 of the Constitution. Nagarathna’s dissent called for rigorous assessment and precautionary measures, underscoring the need to protect intergenerational equity and safeguard public health.
Medical termination of pregnancy case
In a sensitive case concerning the abortion of a 26-week foetus, Nagarathna’s dissent on a two-judge bench was a testament to her compassionate yet principled judicial philosophy. She held in favour of the woman’s right to abortion, emphasising the socio-economic conditions and medical circumstances that warranted the decision. The woman, a mother of two, had approached the court stating that she was suffering from lactational amenorrhea and depression and was, therefore, unwilling to continue with the pregnancy.
Nagarathna asserted: “This is not a case where the question of viable baby being born or unborn is to be really considered when the interest of the petitioner has to be given more balanced width and reference the socio-economic situation in which the petitioner is placed, the fact that she already has two children, the second child being only one year of age and the fact that she has reiterated that her mental condition, and the medicines she is taking for a mental condition, do not permit her to continue with the pregnancy.”
Her judgment highlighted the importance of respecting a woman’s autonomy over her body and her life choices, reinforcing the fundamental right to privacy and personal liberty.
Nagarathna’s tenure in the Supreme Court career is distinguished by her fearless stance on critical issues. Her willingness to stand apart from the majority's view demonstrates her courage and integrity as a judge. Her dissents are not mere disagreements but are deeply rooted in her judicial commitment to justice, democratic values and the protection of individual rights. As she prepares to ascend to the position of the CJI, her legacy of dissent will undoubtedly continue to shape the contours of Indian jurisprudence and uphold the highest standards of judicial conduct.
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