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The Power of Dissent

Banksy Photo by Dan Meyers on Unsplash

Justice BV Nagarathna of the Supreme Court of India was recently in the news for being the dissenting voice on two key judgments of the Supreme Court. The first was a verdict on whether Demonetization by the Modi Govt in 2016 was legally valid, and the second was about whether a Minister in the Government is (or not) entitled to 'Hate Speech' in the name of freedom of speech. Justice Nagarathna is, of course, no ordinary judge - she may go on to become the first female Chief Justice of India - and is the daughter of former CJI ES Venkataramiah.

But this post is not about Justice Nagarathna, it is about dissent, and especially for the ilk who lament that small dissent in face a powerful lobby is useless. I've heard this often that dissent does not make a difference, especially from people do not wish to engage in socio-political debates; some well wishers also advise against making dissent publicly known for 'one's own safety'. One of the arguments made recently in context of the above two judgements by Justice Nagarathna, was that there was no point of the dissenting argument because the verdict still went in favour of the government in both these cases - and hence nothing much changed, so what's the point of dissent?

As a student and proponent of data privacy, this point is especially dear to me - what is the point of dissent? For those who may not have followed the trajectory of Privacy law in India (a story still unfinished), right to privacy in India emanated from a dissenting verdict. What is more interesting that the original case where right to Privacy was challenged (and then not upheld) was not filed by a member of India's elite urban suave gentry (typically the crowd which is considered internationalized and hence aware of these 'higher order rights'), but by an ex-dacoit convicted of the crime and subsequently reformed. This was a case of Kharak Singh vs Government of Uttar Pradesh where the petitioner was challenged in a dacoity case but was released as there was no evidence against him. The police opened a history sheet against him and he was put under surveillance. Kharak Singh then challenged this surveillance as infringing on his right to privacy. In this case, while the bench sided with the government claiming that Right to Privacy not guaranteed by the Constitution, one judge Justice Ayyangar cited Article 19 of the Constitution stating that the right to liberty encompassed right to privacy as Privacy was integral to Liberty.

In 2017, when the Supreme Court of India was deciding on Aadhar Scheme's invasion of privacy in Puttaswamy v. Union of India, the Supreme Court cited the minority dissenting judgement and agreed with it to declare Right to Privacy as a fundamental right under the Constitution of India. This finally forced the government to initiate formation of a Privacy law, which was presented and then withdrawn in light of criticism last year - and is still under draft. The government had been dragging its feet for a long time on the subject of data privacy and it is one dissenting judgment from 80 years ago which forced the government to come up with a law. 

Before someone declarers Justice Ayyangar's case as exception to the rule, let me clarify that this is not an isolated case in legal history. Not just India, several milestone judgments - especially under Constitutional law - across the globe have been decided due to dissenting judgments. Some notable social injustices reversed by the impact of dissenting voices are:

  • Right to citizenship for descendants of slaves in America
  • Ending of racial segregation in American colonies 
  • Making wiretapping by government illegal 
  • Legalization of LGBTQ relationships (both India and the US)
  • Abolition of death penalty in South Africa 
  • Striking down of a ban on abortion in Canada
  • Establishment of 'basic structure of the Constitution' in India
It may be easy to cite cases of legal dissent because the correlation is direct and well documented. However, dissent comes in many forms - Gandhi's non-cooperation movement was one of the most effective non-violent methods to show dissent, even sportspersons tying black armbands to showcase dissent has often made a major impact in turning public attention towards any historical injustice. 

The foremost example of this was Tommie Smith and John Carlos, two American track and field athletes who put black armbands during the 1968 Summer Olympics in Mexico City, as a protest against racial discrimination in the United States. They raised their fists in a "black power" salute during the medal ceremony for the 200-meter race, which Smith won. This iconic image brought attention to the Civil Rights Movement in the United States and the struggle for racial equality. Some other notable examples of public but silent dissent are:

  • The Silent Protest Parade in New York City in 1917, in which a group of African Americans marched silently down Fifth Avenue to protest the East St. Louis riots and lynchings.
  • The Salt March in India in 1930, led by Mahatma Gandhi, in which thousands of people walked silently to the sea to protest a British salt tax and to produce their own salt in violation of British law.
  • In 1969, group of students at Des Moines Independent Community School District, wore black armbands to school to protest the Vietnam War.
  • The "Silent Sam" protest at the University of North Carolina in 2018, in which students and activists covered the controversial Confederate monument with black cloth and held silent protests.
  • The "Silent Majority" protest in Hong Kong in 2019, in which citizens formed a human chain across the city, wearing white and standing in silence to show their support for democracy and opposition to the extradition bill.
  • The "Silent Sit-in" protest in Nigeria in 2020, in which activists sat in silence at the Lekki Toll Plaza in Lagos to protest police brutality and demand justice for victims of the Lekki massacre.

Almost every year, we hear silent marches by Green activists at COP meetings or "Fridays for Future" movement, by Greta Thunberg, as weekly school strikes for climate action - these all dissents have pressured governments into taking decisive steps against Climate change. 

Photo by Samuel Regan-Asante on Unsplash

Then one remembers the several silent attempts to protect Jews during the WW-II under Nazi reign of Europe in 1930s and 40s - whether it was a Polish resistance, Norwegian, Dutch or Danish movements - most of these dissents were by common citizens done silently but firmly sabotaging the Nazi establishment's plans. While millions of Jews may have perished during those years, the many celebrated Jews who helped mankind prosper in the post-war years were saved thanks to the efforts of these enlightened folks who just decided not to back down and even thought they could not nothing to resist armed German and SS forces, they used dissent to provide succor if not fight injustice.

Dissent is important because it allows for the expression of different perspectives and ideas, which can lead to a more informed and well-rounded decision-making process. It also allows for the identification of potential problems and alternative solutions that may not have been considered otherwise. Additionally, it can also serve as a means of holding those in power accountable and protecting against the abuse of power.

As social media aides the creation of echo chambers and the world becomes increasingly polarized, dissent assumes far more significance to protect future generations from degenerating into a unidirectional zombie proletariat and preventing the society turning into an Orwellian dystopia. 

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