New Delhi: The Chief Justice of India D Y Chandrachud Saturday said in a democracy the majority will have its way but the minority must have its say. He stressed that dissent emerges from profound questions about the working of the society, and dissent in a democracy, even those which are unpopular and unacceptable, give windows to the future.
The CJI was speaking at the Justice Keshav Chandra Dhulia Memorial Essay Competition, at the Forest Research Institute, Dehradun. He spoke on democracy, debate, and dissent.
Majority views- The CJI said for all citizens to feel free in a democracy, the State must side with the weaker population which may be a numerical or a social minority, and this may at first appear to be at odds with the democratic principle of majority rule. “However, a mere rule by majority can be established by many forms of government. The beauty of a democracy is the sense of moral status with which all citizens can participate in a country and the consensus in its decision making. In a democracy the majority will have its way but the minority must have its say”, he said.
'Engagement in democracy'- Justice Chandrachud said a democracy, in order to be more than a mere approximation of majoritarian preferences, must engage with all its stakeholders. He added that democracy is messy, and imperfect but inherent in it are the postulates of justice, liberty, equality, and fraternity.
He said deliberation is the difference between a majoritarian decision that is foisted on an unwilling electorate and a decision that the people are willing to accept, engage with and hopefully alter one day.
'Social harmony, a pre-requisite to democracy'- The CJI said while social harmony among citizens is a pre-requisite to democracy, it cannot be manufactured by removing conditions under which dissent may be freely expressed. He said a society is often known by its great dissenters because dissenters inform us of the location and direction of a democracy.
'Perils of accepting executive excesses'- “Dissenters like Justice John Marshall Harlan in the US Supreme Court case of Plessy v. Ferguson. Justice Harlan was the lone dissenter in the opinion which upheld the racist 'separate but equal' doctrine in the United States and affirmed the Jim-Crow laws. In our own country, Justice Khanna’s lone dissent in ADM Jabalpur v. SS Shukla warned against the perils of accepting executive excesses into the fundamental rights of citizens”, he said.
The CJI added that ultimately, these dissents like all dissents were not only speaking to the times in which they were written – they were speaking to the future. “Dissent in a democracy, even those which are unpopular and unacceptable, give us windows to the future”, he said.
'Profound questions'- The CJI said dissent emerges from profound questions about the working of the society and abolition of slavery, annihilation of caste, emancipation of gender minorities, and religious harmony were all once dissenting opinions. “However, these dissents hold the power to fundamentally restructure our society by sparking an important conversation. These dissents emerge not from thin air but from a democratic culture of fierce debates. Therefore, a society which does not encourage its citizens to critically think, question the powers that be, and engage in nonconformist democratic discourse will fail to progress because it will fail to create dissenters”, he said.
'Deliberative democracy'- Justice Chandrachud said according to scholar John Dryzek, “deliberative democracy” entails the ability of all individuals subject to a collective decision to engage in authentic deliberation about that decision. “While deliberation sustains a democracy, dissent nourishes it. If democracy means that the views of the majority prevail, then it necessarily implies that a deliberating and eventually, a dissenting minority. And this can at times be more powerful than a dumb, unthinking accepting majority, ruled by slogans. A servile and subservient population guarantees a weakened democracy”, he said.
'Building Consensus'- The CJI said in a diverse democracy, it is quite likely that certain opinions are heftier for reasons other than their intrinsic merit. “There will of course be outcomes that are favourable to some more than others. If we truly manage to incorporate all streams of ideas into our decision-making processes, that by itself will not lead to outcomes that are acceptable to every participant”, he said.
'Social exclusion'- Justice Chandrachud said a deliberated outcome accords legitimacy to the institutions of governance. He said to be equal, is not only to be equal in the eyes of the law but also to be treated as equals by our fellow citizens and laws are the most visible guarantors of —and impediments to—personal freedoms. “However, the indignity of inequality often comes not in the form of a policy or a law but in the form of, say, exclusion from informal workplace gatherings or even social groups in school and university due to religion, caste, gender or sexual orientation”, he said.
'Social minorities'- The CJI said members of social minorities who are unlikely to be represented through electoral democracy because of religion, class, sex, or sexual orientation—are overrepresented before the courts in constitutional cases. “But certainly, judicial institutions were neither meant to tackle such problems nor are they equipped to in all cases”, he said.
'Diversity of opinion vs basic rules of engagement'- The CJI said beyond the Constitution, to engage meaningfully in a discourse that is governed only by the merits of the arguments, we need to strike a delicate balance between diversity of opinion on the one hand and agreement to basic rules of engagement on the other.
Survival of India- He said first, the colonial legacy of poverty, illiteracy and social division, left many to be sceptical of the survival of India as a pluralistic society governed by a liberal democratic Constitution. The endurance of the Constitution to this day, is thus quite uncharacteristic in a society like ours, he added.
'Participative democracy'-The CJI said a participative democracy simply entails a democracy that operates on and promotes deliberation. “This deliberation emerges not only from the need to secure the right to speech and expression but also to publicly engage with the ideas and enable transformation. It is rooted in the very conception of democracy and it liberates a democracy from its majoritarian impulses”, he said.
'Voting and governance'-The CJI said at its most basic, democracy ensures that people get to vote in periodic elections and that every person has one vote and every vote has one value.
“Mere appeal to voting and governance by those elected through periodic elections will remain an incomplete endeavour in the democratic experiment without upholding these postulates”, he said.
The CJI said these postulates are upheld in two ways: first, by robust institutions that carry out democratic functions, and second, by introducing procedural guarantees which prevent seepage of bias and unfairness in the process of decision making. Additionally, democracy requires constant dialogue between differing opinions and civil society organisations to fulfil the aspirations of the people, he added.
