Vanishing voices of dissent in the Supreme Court

From landmark judgments to internal deliberations, the rarity of dissent raises questions about transparency and accountability.

Recently, in one of Justice B R Gavai’s final acts as the Chief Justice of India (CJI), a three-judge bench of the Supreme Court led by him recalled its May 16 judgment that struck down retrospective Environmental Clearances (ECs) by the Union government. The majority view held that the May judgment would lead to significant loss of revenue and livelihoods if large-scale demolitions of illegal constructions were carried out. The dissenter, Justice Ujjal Bhuyan, had in fact been part of the two-judge bench which authored the earlier judgment.

Dissents are among the most powerful tools available to judges for shaping jurisprudence and upholding institutional integrity. Although dissenting opinions are, by their nature, not part of a judgment’s ratio decidendi, well-reasoned dissents that carefully engage with and counter the majority view play a crucial role in upholding judicial independence and integrity in decision-making.

As Justice Rohinton Nariman has observed, three landmark dissenting judgments in Indian jurisprudential history have since been validated by the passage of time. They include Justice Fazl Ali’s dissent in A K Gopalan v State of Madras, Justice Subba Rao’s dissent in Kharak Singh v State of Uttar Pradesh and Justice H R Khanna’s in ADM Jabalpur v Shivkant Shukla.

Yet, for all the attention that such landmark dissents have received, the incidence of dissenting opinions or even robust deliberation and debate among judges on the bench appears to be rapidly diminishing. A 2011 study by Nick Robinson et al noted that there is only a 5.2% chance that a judge sitting on a Constitution Bench (a bench of five or more judges) will dissent. Dissenting voices are still audible, but faint. Former CJI Dhananjaya Y Chandrachud, for instance, dissented multiple times while serving as a puisne judge, but only once during his tenure as CJI although he led all 18 Constitution Benches constituted during that period.

Disappearing dissents

The composition of a bench plays a significant role in shaping the potential for deliberation and the prospects of concurrence or dissent. The CJI, in the exercise of their Master of the Roster powers, chooses the composition of every bench, including for petitions seeking recall or review of other judgments by the court. This power has often been called into question, most notably in 2018 when four judges alleged in a press conference that the then CJI, Dipak Misra, was selectively assigning cases to judges.

Justice Misra is, however, far from the only CJI to have fully exercised their Master of the Roster powers. As of 2025, CJIs have found themselves in a minority on Constitution Bench cases only 13 times in the court’s entire history. The Robinson study notes that dissents by judges who are part of a bench led by a CJI are extremely rare, occurring in just 0.8% of cases.

Studies on the selection of judges by the CJIs for Constitution Benches indicate a pattern where, in the absence of a transparent and permanent logic for case allocation, certain judges are often given more opportunities to be part of a bench than others. Court on Trial (2023) by Aparna Chandra et al highlights incidents where CJIs have disproportionately picked judges who have often been recommended for appointment by the same Collegium that the CJIs were part of.