In the illustrious history of the judiciary, whenever there has been dissent, the minority has held a small but powerful voice. The minority opinion, by giving a contrasting view, has laid the ground for potential criticism and stood up for the cause of justice when the majority has decided to toe the line against the public good.
The ADM Jabalpur v. Shivakant Shukla case, also known as the Habeas Corpus case, is a classic example of the minority voicing the truth only to be drowned out by the majority opinion. With the Emergency in place in 1975-1977, several people from the Opposition, or those who opposed government policies, were arrested and detained under the Maintenance of Internal Security Act, 1971, which had scarce regard for civil liberties of individuals. Fundamental rights anyway were suspended. The right to move courts for enforcement of any right too was suspended because of an order promulgated by the President. People who were arrested filed the habeas corpus petition in the high courts under Article 226 of the Constitution. These writ petitions contended that the arrests were not in compliance with the law under which they were arrested, or were mala fide in nature, or were cases of mistaken identity. Huge confusion prevailed among the high courts as well. Some sided with the petitioners, upholding their right to move the court for this, while others held that the right to move court had been suspended by the previous order.
As against the four judges in the majority, one who was already the chief justice and the other three who all went on to become chief justices, Justice H.R. Khanna was the only one who gave a dissenting opinion in the case, daring to go against Indira Gandhi and her government, and upholding the right to life and liberty had always existed with humans, and that Article 21 was to ensure that the procedure in laws, which proposed to take away either life or liberty, did not violate the fundamental rights. Justice P.N. Bhagwati and Justice Y.V. Chandrachud both regretted having been with the majority then, and in later years gave dissenting opinions in cases like Minerva Mills, Bachan Singh and Olga Tellis, upholding the same right to life and liberty.
Other cases too have strengthened the premise that dissenting opinions are needed in a democracy that is so varied that they in itself are a form of check on the power of the judiciary. For example, in AK Gopalan v State of Madras, 1950, while the majority held that law was what was laid down by the state, and law under Article 21 of the Constitution did not embody the concept of natural law, it was Justice Fazal in the minority who said that law was always supposed to include the principles of elementary justice, and that any procedure established by law must include notice, an opportunity to be heard, an impartial tribunal and an orderly course of proceedings. Very often, we must be told what we don’t want to hear, shown the mirror time and again to ensure that our feet stay rooted. You need an anti-majority to keep the majority in check!
Thank you to all those who have taken the trouble to read the article and share their thoughts. Out of the arguments made here, there are two that perhaps need answering. So here they go.
1. The first part of the article compares outcomes (relative percentages of population of the religions concerned) irrespective of the process that led to those outcomes - whether immigration, relatively faster population growth or conversions. This was for two reasons. One, to put the figure of 2.3 per cent in "numerical perspective", as the article itself explained. The second reason was that outcomes are ultimately what the crux of debate is about. The rest of the article in any case dealt with process - or conversions in this case, from both a contemporary and historical perspective.
2. Some commenters have tried to cast doubts on the reliability of Census 2001. Those who do this should bear in mind that Census 2001 was conducted by a BJP government. Considering the extreme importance that BJP gives to this issue, it would be reasonable to expect that IF it had perceived a problem with the methodology that was distorting the numbers, it would have fixed it. As the article mentioned, BJP or BJP-supported governments have been in power for 10 of the last 40 years, or about a quarter of the time, and the only reasonable conclusion one can arrive at is that any misreporting of numbers, real or perceived, would be marginal and hence, not of importance.
To all other arguments made, my answer is the following: Please read the article again, with particular focus on the quotations of Vivekananda and Monier Williams, and the history of the missionary efforts in Bengal and their outcome.
"": Freedom only for the members of the government, only for the members of the Party — though they are quite numerous — is no freedom at all. Freedom is always the freedom of dissenters"...........Luxemberg
Bhagwati J as he then was did not sit on the Bench that heard Olga Tellis; Chandrachud CJI who presided was with the majority.
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