Judges should make constitutional law regardless of the outcome of the next election: Judge Nariman

Retired Supreme Court Judge Rohinton Fali Nariman said judges should make constitutional law regardless of the outcome of the next election.

Speaking at an online event for the launch of his new book, he said: “The money has to stop somewhere and it stops at the Supreme Court. We must establish constitutional law in a continuum, without depending on the outcome of the next election. “

Judge Rohinton Fali Nariman retired on Thursday after a stay of seven years. He was appointed Solicitor General of India and later became the fifth person to be elevated to the Supreme Court bench directly from the bar, without being appointed a High Court judge.

At the launch of his third book “Discordant Notes – The Voice of Dissent in a Court of Last Resort”, former Supreme Court Justice Nariman stressed on Saturday that “the Constitution is our sacred book”.

Presenting his book, he said the idea came from a talk he gave in January of last year.

“I had something like six weeks at home during the pandemic doing nothing when I wrote this book. I did extensive research. The first chapter deals with the need for dissent. It gives you the pros and cons of allowing dissent and otherwise in civil and common law jurisdictions Chapter Two deals with notable dissent in history from the First World War, “said former Justice Nariman.

In two volumes, the book deals with the dissenting opinions expressed by Judge Fazl Ali, Judge Vivian Bose and Judge Subba Rao.

“The fact that we can write a dissent today is a great deal, you finish one judgment and then there are three more. It’s not that people don’t disagree. Today, the Supreme Court acts as a national court of appeal and not a constitutional court, ”said former judge Nariman.

Justice Venkatachaliah’s dissent in the AR Antulay case, which turned the discussion on constitutional law and the jurisdictional powers of superior courts, is also featured in the book.

Judge Rao, described as a “dissenting champion” by Nariman, was the author of 53 dissenting opinions during his tenure on the bench. The book also discusses the various dissenting opinions of Judge AK Sarkar and Judge Ashok Mathur’s dissent in the Mirzapur case, on the issue of the role of guidelines and their impact on statutory interpretation.

Former Supreme Court Justice BN Srikrishna, who was on the roundtable, also said dissent was “necessary in a democracy”.

“Dissent in a constitutional judgment is akin to opposition in a parliament. Can you imagine a parliament without opposition? There are always tensions in democracy. Otherwise, you would have a dictatorship. In a democracy, you try to find a way for everyone to be happy without violating the basic needs of the people, ”Judge Srikrishna said.

Senior lawyer Darius Khambata and Bombay High Court Judge Gautam Patel were also on the panel.

Lawyer Khambata said the importance of this book is that it tells us what judges are meant to be.

“Judges must be courageous and they must be of integrity. They must also have intellectual prowess. Today in our society, dissent occupies a suspect place. Is dissent the same as protest? keeps the majority on its guard, ”the senior lawyer said.

“Sometimes dissent is not always followed immediately. Now we have the doctrine of substantial injustice which is used to repeal laws,” Justice Khambata said, adding that dissent is necessary for “the development of the law.” .

Judge Gautam Patel also said that it is important for the younger generation of lawyers and judges to read up on dissent.

“There is this concept of rescue for tomorrow and the dissent is a testament to the character of the judiciary. The concepts are there in the book. It tells people that the judiciary is truly independent,” Justice Patel said.

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