Discordant Notes Volume 1 The Voice Of Dissent In The Last Court Of Resort – Rohinton F Nariman

A final argument, more in terrorem than based on reason, put forward was that, if the majority view in Velliappa is upheld, it would be impossible to prosecute a number of offenders in several statutes where strict liability has been imposed by the statute. If that be so, so be it. As already pointed out, the judicial function is limited to finding solutions within specified parameters. Anything more than that would be ‘judicial heroics’ and ‘naked usurpation of legislative function’. The minority then expressly supported the majority view in Velliappa as follows: 75.

Para 57 of the judgment in Velliappa specifically notices that corporate criminal liability cannot be imposed without making corresponding legislative changes such as the imposition of fine in lieu of imprisonment. That such requisite legislative changes were introduced in Australia, France (Penal Code of 1992), the Netherlands (the Economic Offences Act, 1950 and Article 51 of the Criminal Code) and Belgium (in 1934 Cour de Cassation) is already referred to in Velliappa.

76. We see nothing special in the Indian context which requires us to take a different view. In all these jurisdictions, the view that prevailed was that, where a statute imposes mandatory imprisonment plus fine, such a provision would not enable the punishment of a corporate offender. If the legislatures of these countries stepped in to resolve the problem by appropriate legislative enactments giving option to the courts to impose fine in lieu of imprisonment in the case of a corporate offender, we see nothing special in the Indian context as to why such a course cannot be adopted.

Merely because the situation confronts the courts in a number of statutes, the court need not feel deterred in construing the statute in accordance with reason. xxx xxx xxx 79. For all these reasons, we are of the opinion that the majority view of this Court in Velliappa is correct and does not require any reconsideration by this Bench. All the matters comprised in this group be placed before appropriate Benches for disposal in accordance with law.

The minority judgment in this case is a textbook example of a dissenting judgment acting as a stabilizing force, stating that an earlier binding view of the Supreme Court ought not to be unsettled, particularly in view of the fact that Parliament was cognizant of the problem posed in the case and, despite one abortive attempt made way back in 1972 to rectify the situation, has not yet rectified the same.

17. SBP & Co. v. Patel Engineering Ltd. (2005) A seven-judge bench in SBP & Co. v. Patel Engineering Ltd. (2005) * was concerned with the correctness of a five-judge-bench decision in Konkan Railway Corporation Ltd. & Anr. v. Rani Construction Pvt. Ltd.

The Need for Dissent When the Chips Are Down—the Law in Times of War or Emergency The Dissenting Judgment as a Stabilizing Force—Don’t Unsettle the Law The Dissenting Judgment as an Agent of Change—the Appeal to the Brooding Spirit of the Law Great Dissents—the Spirit of the Law Continues to Brood, Not Act Footnotes The Need for Dissent When the Chips Are Down—the Law in Times of War or Emergency The Dissenting Judgment as a Stabilizing Force—Don’t Unsettle the Law The Dissenting Judgment as an Agent of Change—the Appeal to the Brooding Spirit of the Law Great Dissents—the Spirit of the Law Continues to Brood, Not Act Index of Cases Follow Penguin Copyright OceanofPDF.com To my two beloved uncles Adi Nariman and Dr Soli Contractor, who were my mentors and best friends as long as they lived OceanofPDF.com PREFACE A dissenting judgment, as ordinarily understood, is a judgment or an opinion of a judge, sitting as part of a larger bench, who ‘dissents’ (i.e.

disagrees) with the opinion or judgment of the majority. Dissenting judgments or opinions appear in different ways. A dissent is nonetheless a dissent, despite the fact that it may arrive at the same conclusion as that of the majority, but by an antithetical, or even different, set of reasons. Sometimes, the dissenting judgment may be total, in the sense that it distances itself not only from the reasoning of the majority judgment but also from its conclusion.

Sometimes, the dissent may be partial, in that the dissenting judge agrees with certain points in the majority judgment, but disagrees with some other point or points, and ultimately reaches either the same or a different conclusion. For example, while a majority decision of the Supreme Court of India may call for a high court judgment to be upheld, the dissenting judge may, after dissenting on one or more points, send the matter back to the high court on remand to decide a particular issue/issues afresh.

Sometimes, there can even be a wolf hiding in sheep’s clothing—a concurring judgment that may be styled as such, but may in fact reach the same conclusion by reasoning which does not square with that of the majority. This book has all the aforesaid examples of judgments which may be categorized as ‘dissenting’ judgments, in the sense just mentioned. In this book, I have done a thorough study of all the dissenting judgments of the Supreme Court of India, and have attempted—in my own way—to classify most of them according to their quality, conservatism and, the opposite—foresight.

The impetus for this book has come from two sources. The first is a lecture delivered by me in 2016 at the invitation of Justice Sujata V. Manohar, retired judge of the Supreme Court of India, on the occasion of the Twelfth Memorial Lecture in memory of her father, Justice K.T. Desai.

This is a short excerpt from the opening of “” by Unknown, quoted for review and introduction purposes. All rights belong to the copyright holders.

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