ColumnsA Tale Of Two Dissents Kartikeya Sharma28 Nov 2020 10:26 PMShare This – xWhen we think of dissents, we are reminded of the powerful words of the 11th Chief Justice of the United States Charles Evans Hughes that “a dissent in a court of last resort is an appeal to the brooding spirit of law, to the intelligence of a future day when a later decision may possibly correct the error into which the dissenting justice believes the court to have been…Your free access to Live Law has expiredTo read the article, get a premium account.Your Subscription Supports Independent JournalismSubscription starts from ₹ 599+GST (For 6 Months)View PlansPremium account gives you:Unlimited access to Live Law Archives, Weekly/Monthly Digest, Exclusive Notifications, Comments.Reading experience of Ad Free Version, Petition Copies, Judgement/Order Copies.Subscribe NowAlready a subscriber?LoginWhen we think of dissents, we are reminded of the powerful words of the 11th Chief Justice of the United States Charles Evans Hughes that “a dissent in a court of last resort is an appeal to the brooding spirit of law, to the intelligence of a future day when a later decision may possibly correct the error into which the dissenting justice believes the court to have been betrayed.” While unanimity in a decision is desired to ensure consistency and finality, a dissent may reflect an independent application of mind and provide an alternate view to be considered by future judges and scholars. Constitutional courts engage with interpretation of laws and there is always more than one perspective to be considered during the process of interpretation. A dissenting opinion provides a contrary perspective as to what is the correct interpretation of the law as per the dissenting judge. A dissent may challenge the status quo and play an important role in changing the outlook of society towards contemporary issues. Both the United States and India have seen their fair share of path breaking dissents and out of these opinions, a few have been affirmed as laying down the correct position of law. In memory of the late Justice Ruth Bader Ginsburg of the Supreme Court of the United States, the dissent in Ledbetter v. Goodyear Tire & Rubber Co. must be mentioned as an example of a dissent that was affirmed by the Legislature by passing a bill to that effect. In this opinion, Justice Ginsburg held against the 180-day limitation period to bring forward a complaint regarding pay discrimination as it is not possible to determine pay discrimination within such a short time frame. This was incorporated into a legislation named the Lilly Ledbetter Fair Pay Act and it was in fact, the first piece of legislation signed by President Barack Obama in January 2009. The focus herein is to discuss and highlight impact of two dissenting opinions penned by two great judges of the 19th and 20th century, respectively. The first being, Justice John Marshall Harlan’s seminal dissent in Plessy v. Ferguson (“Plessy”) and the second, Justice Hans Raj Khanna’s timeless dissent in A.D.M. Jabalpur v. Shivkant Shukla (“Jabalpur”). These landmark dissents were delivered about 80 years apart and the circumstances surrounding them might have been completely different but, their impact was far reaching and are hailed as acts displaying moral fiber. A little context is required first to appreciate the brilliance of these dissents. The background of the decision in Plessy was that Homer Plessy, a mixed-race man attempted to board a railway carriage in Louisiana earmarked for whites. What was interesting was that this was a deliberate attempt to test the segregation law in force in Louisiana and Homer Plessy wanted to be arrested in the white-only section of the carriage. When the case reached the Supreme Court of the United States, Plessy argued that ‘separate but equal’ was against the principles of legal equality but, this argument was rejected by the Court’s majority. The majority held that while the Fourteenth Amendment guaranteed equality, it was political equality which was protected which meant in the political sphere, people belonging to the colored race were on the same pedestal as whites. But this equality excluded social equality, as there was no comprehensible way the U.S. Constitution could equate an ‘inferior’ race to a superior one. Justice Harlan, the lone dissenter, opined that in respect of civil rights common to all citizens, the Constitution of the United States does not permit any public authority to determine the race of those entitled to the enjoyment of their rights. Giving a broad interpretation to the Thirteenth Amendment which abolished slavery, Justice Harlan goes on to say that the amendment did not only abolish slavery, but also prevented the imposition of any burdens or disabilities that may be associated with the practice. Delving into an interpretation of the Louisiana segregation law, Justice Harlan held that that it was intended to keep the colored race separate from the whites and this would be an infringement of their personal liberty. This emerges from the law as it punishes railroad companies for permitting persons of the two races to occupy the same carriage and the State actively attempting in drawing a line between the two races regarding public conveyance. It must be noted here that Justice Harlan too was a man of his time like any other with all the failings and trappings of a white man in 19th century United States being a former slave-owner himself. His personal notions and bias find their way into the dissent when he states that the white race is dominant in terms of prestige, achievements, education, wealth and power and further, he believed that it would continue to be dominant if it remains true to its heritage whilst adhering to the principles of constitutional liberty. After this slight deviation, Justice Harlan comes back to the exposition of the law and Constitutional liberties. The famous words that followed deserve to be quoted verbatim, “But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.” Justice Harlan concludes by predicting (correctly) that the majority opinion shall not stand the test of time just as the dreadful decision in Dred Scott v. Sandford. The Thirteenth, Fourteenth and Fifteenth Amendments were introduced to ensure universal civil freedom but, despite these changes to the law, there was no real equality before the law and that as a result of the majority opinion, States would be free to interfere with the enjoyment of rights, common to all citizens. Coming to the judgment in Jabalpur, the setting of the case was bang in the middle of the infamous internal Emergency of 1975 which amplifies the impact of the dissent penned by Justice H.R. Khanna. The background of the case before the Supreme Court of India in a nutshell was that the Respondents therein had approached various High Courts challenging the validity of detention orders passed in furtherance of the Presidential Proclamation dated 27th June, 1975 under Article 359 of the Constitution which brought into effect the Emergency, supplemented by the Presidential Order of 8th January, 1976 whereby it was declared that the right to move any court for the enforcement of the rights conferred by Article 19 and the proceedings pending in any court for the enforcement of those rights shall remain suspended during the operation of the proclamation of Emergency. The case was decided by a majority of 4:1 with each of the judges on the bench writing their own opinions. The conclusion arrived at by the majority was that during a proclamation of Emergency, no writ of habeas corpus lay against detentions as Part III rights remained suspended at such a time. This in effect meant that the right to move a Constitutional Court for the enforcement of fundamental rights was taken away for the time being. At the very outset of his dissent, Justice Khanna declares that vesting of the power of detention without trial in the hands of the Executive has the effect of combining the role of prosecutor and judge unto one body and is bound to reek of arbitrariness. The crux of his dissent lies in the finding that Article 21 is not the sole repository of the right to life and personal liberty as this right is the most precious right of human beings in civilized democratic societies. Article 21 does not bestow upon any individual the right to life and personal liberty, it is a mere recognition of the same and even in the absence of this provision, it would not be possible to say that this right does not exist. It is a manifestation of the rule of law and life and personal liberty are ‘priceless possessions’ of every individual in a civilized society. Justice Khanna also found that there can no curtailment of the right to seek a writ of habeas corpus from the High Courts under Article 226 during a proclamation of Emergency, observing that even during the wars of 1962, 1965 and 1971, the power of the High Courts to issue such writs was not curtailed. Both these dissents now stand affirmed as having interpreted the law correctly. Justice Harlan’s dissent upheld by the 1954 judgment in Brown v. Board of Education of Topeka and Justice Khanna’s dissent by the 9-judge bench decision in Justice K.S.Puttaswamy v. Union of India. What makes these dissents more influential is the context and the backdrop in which they were delivered. Justice Harlan, as mentioned above was a slaveowner himself and was a staunch supporter of the practice until the late 1860s after which he joined the Republican party and began opposing the abhorrent practice of slavery. Once he joined the Supreme Court in 1877, he wrote hard hitting dissents on civil rights’ issues and the dissent in Plessy was his magnum opus and thereby cemented his legacy. A testament to the greatness of this opinion is the story that the legendary Thurgood Marshall, who later became the first African American justice on the Supreme Court, looked to this dissent for motivation and inspiration while arguing Brown v. Board of Education before the Supreme Court. During the time of the judgment in Jabalpur, there was a sense of uneasiness and fear, especially within legal fraternity. After the 1973 judgment of Kesavananda Bharati v. State of Kerala, the three senior most judges of the Supreme Court, Justices Shelat, Grover and Hegde were superseded by the Government and Justice A.N. Ray was appointed the 14th Chief Justice of India. In 1976, the Emergency was in full force and it could reasonably be expected that the Government would not hesitate to supersede any more judges. At the time of the decision, Justice H.R. Khanna was next in line to become the Chief Justice of India, and the stakes could not be higher. There was a widespread violation of civil rights, curtailment of press freedom and detentions without trial and the Supreme Court had the opportunity to uphold and protect democratic ideals and not bow down before the Executive of the day but, alas it failed in its Constitutional duty to protect the fundamental rights of the citizens. Justice Khanna, the lone and bold dissenter, paid the price for his opinion as he was superseded by Justice M.H. Beg for the post of Chief Justice, after which Justice Khanna gracefully resigned. The sacrifice made, as he was aware of the consequences of his dissent as noted in his autobiography Neither Roses Nor Thorns, ensured that Justice Khanna’s name would be etched in our memories for a long time. It is interesting to note a few similarities between the two justices. Justice Harlan, unlike most of his colleagues was not from an Ivy League law school but had a few advantages over his colleagues, first, he had a mixed race half-brother who was born into slavery and second, he had the advantage of serving in the Civil War as a soldier. The majority opinion in that case was authored by Justice Henry Brown who was a well to do man who did not participate in the civil war and was bereft of such advantages or first-hand experiences that may have been of assistance to him. Justice Harlan did not allow his personal biases or leanings come in the way of his steadfast interpretation of the Constitution and upholding the principles enshrined therein. Similarly, Fali Nariman in an interview opines that Justice Khanna may not have been as gifted intellectually as compared to some of his other colleagues like Justices Y.V. Chandrachud and P.N. Bhagwati but, what separated Justice Khanna from the rest was his unwavering and zealous commitment to upholding personal liberty regardless of the potential consequences flowing from his bold opinion. The greatness of these two justices can also be measured by the tributes paid by none other than their colleagues on the bench in the decisions being discussed. Justice Henry Brown, author of the majority opinion in Plessy, at the end of his life noted that the brilliance of Justice Harlan’s thinking was the assumption made by the latter in his dissent that the intent of the segregation law was to keep the colored race away and not vice versa, something which the 7 majority judges (including Justice Brown) seemed to have missed. The stand taken by Justice Khanna was accepted as the correct stance by Justice P.N. Bhagwati who publicly apologized in 2011 for siding with the majority in Jabalpur. There is no doubt that dissent plays an important role in democracy and as we have seen from the examples of these two justices, dissents from the bench even serve the purpose of allowing posterity to correct historical wrongs. Civil rights or fundamental rights require constant protection and it is individuals like Justices Harlan and Khanna who stand vigil, guarding against attacks that have the ability to threaten and erode the pillars upon which the rule of law stands upright. Views are personal(Author is a Law Researcher at the High Court of Delhi)  550 U.S. 618 (2007)  163 U.S. 537 (1896)  (1976) 2 SCC 521  Supra note 2, pg. 559  60 U.S. 393 (1857)  347 U.S. 483 (1954)  (2017) 10 SCC 1  (1973) 4 SCC 225 Subscribe to LiveLaw, enjoy Ad free version and other unlimited features, just INR 599 Click here to Subscribe. All payment options available.loading….Next Story
Georgia’s wildly fluctuating temperatures in this year’s first four months played havoc on the state’s signature onion crop. While farmers were expecting a banner year for onion yields, a warm January and February followed by a chilly March and April caused widespread cases of seed stem in the 12,000 acres of Vidalia onion fields. Seed stem is a stress-induced condition where the center of the onion becomes hard and starts to produce a stem. The onion is still edible, but has a short shelf life, which severely limits its marketability. In some farmers’ fields, upwards of 70 to 80 percent of the onions had seed stems, said Reid Torrance, a Vidalia onion expert with University of Georgia Cooperative Extension who has been serving the Tattnall County onion-producing area since 1984. “It’s hard to pin down exactly what triggers the onions to develop seed stems,” he said. “But I think these huge fluctuations in temperatures we had this year contributed to it. Anything that shocks the plant can cause it to develop a seed stem.” Soaking rains that flooded farmers’ fields in March also contributed to the number of seed stems in the fields. Adding to the problem, cooler temperatures in March also slowed the development of the onions, which need a certain number of days above a certain temperature to mature completely. Onions with seed stems can be separated out after harvest, but farmers don’t want to have to pay to harvest all of their onions if they will only be able to sell half of them. Farmers who have seen 50 percent or more of their onions coming out of the ground with seed stems are likely to plow their fields under and make insurance claims rather than spend the money on labor needed to cut and sort the onions. “When you’re talking about 50 to 60 percent of your crop having problems, any problems, it makes more sense (not to harvest),” Torrance said. “You’re not going to make any money, but you’ll lose a lot less.” Torrance estimates that onion farmers are losing a total of about one-third of their crop this year. Despite the loss, consumers probably will not notice a lack of Vidalia onions in the grocery stores or onions of any lesser quality. They may, however, notice slightly higher prices, he said. Onion prices were already high going into this year’s Vidalia onion harvest season because of production problems in other onion producing regions. Vidalia farmers were hoping to make good profits off of those higher prices this year, but now they’ll need prices to go up a little more just to break even, Torrance said. “We thought we were sitting on a goldmine down here, but not with a third of the crop in seed stems,” he said. “We hopefully will see onion prices go up as the season progresses because more and more farmers are determining that the crop is not going to be as big as we had hoped.”
DREAMING SUPPORTERS “It is true our supporters can dream,” Spurs manager Mauricio Pochettino said. Second-place Tottenham lead Arsenal on goal difference, while City’s second straight home loss kept the team six points behind Leicester, with their squad beginning to look stretched as they go for trophies on four fronts. In the other match, last-place Aston Villa slipped to their heaviest home defeat in 81 years, losing 6-0 to Liverpool. The visitors had six different scorers, including Daniel Sturridge in the injury-prone striker’s first league start for more than four months. Relegation candidates all of last season, Leicester are dealing with a different kind of pressure this time round, but failure to handle rising expectations wasn’t the reason behind the defeat at Emirates Stadium. The biggest factor was probably the sending-off of right back Danny Simpson after two yellow cards in the opening nine minutes of the second half. Leicester were then leading 1-0, thanks to Jamie Vardy’s penalty on the stroke of half-time – his league-high 19th goal of the season. Substitutes came good for Arsenal. Theo Walcott equalised with 20 minutes to go, with Arsenal’s first shot on target and fellow sub Welbeck, who came on in the 83rd minute, headed in Mesut Ozil’s free kick. “Everybody is extremely happy for him because he has been out for 10 months. That is an eternity for a player,” Wenger said. Spurs capped a successful day for the north London clubs by completing a league double over City, another sign that they are ready to finally challenge for the championship under Pochettino after years of underachievement. Harry Kane put Tottenham in front in the 53rd from a penalty that was controversially awarded for a handball against Raheem Sterling, who turned his back to a cross from Danny Rose. The ball appeared to strike a combination of his elbow and back, with his arm not outstretched. Substitute Kelechi Iheanacho equalised in the 74th, only for Eriksen to race onto Erik Lamela’s through-ball and slip a low finish past goalkeeper Joe Hart. With 12 games left, City are now dependent on three teams above them dropping points. “The first problem is our team,” City manager Manuel Pellegrini said. “We need to improve in a lot of things.” It is the first time since 1985 that Tottenham has been second at this stage of the season. After Sturridge and James Milner secured a 2-0 lead at half-time, Liverpool scored four goals in 13 second-half minutes – through Emre Can, Divock Origi, Nathaniel Clyne and Kolo Toure – to seal their biggest win under Juergen Klopp. Liverpool climbed to eighth place, three points behind fifth-place Manchester United, while Villa are eight points from safety. MANCHESTER, England (AP): Arsenal and Tottenham grabbed late winning goals against title rivals yesterday to move two points off the lead as the race to win the English Premier League tightened up. Leicester started the weekend with an unlikely five-point lead, but conceded in the fifth minute of stoppage time to lose 2-1 at Arsenal, with Danny Welbeck scoring the winner in his first match back after 10 months out because of injury. “This strengthens our belief that we are in the fight,” Arsenal manager Arsene Wenger said. “It would have been massive for us to lose.” It was only Leicester’s third loss of the season – and two of them have been inflicted by Arsenal. Christian Eriksen didn’t leave it quite so late for Spurs against Manchester City, slotting home in the 83rd minute to also seal a 2-1 win at Etihad Stadium. It will be regarded as a landmark win for a young Tottenham team that is going for the club’s first league title since 1961.
Related Posts Internet of Things Makes it Easier to Steal You… Why IoT Apps are Eating Device Interfaces Follow the Puck TomTom may be on the verge of leaving the wearables market, after a 20 percent year-on-year consumer sales decline, which management blamed on the Sports division.“The wearables market has fallen short of expectations… And because of this and because we want to focus on automotive, licensing and telematics businesses, we are reviewing strategic options for our Sports business,” said TomTom CEO Harold Goddijn.See Also: Where are all the women in tech? They’re in wearablesTomTom’s sports division includes the company’s fitness trackers and the action cams.According to a report by Wareable, several key figures in the division have already departed. These include Patrick Stal, VP of marketing for TomTom Sports, Costa Grillo, global product marketing manager, Lindsay Mandeville, communications manager, George Sewell, VP of software, and Tom Brown, the head of the UK operations.Lots of empty desksMost of them left during TomTom’s last round of firings, in December. The report says that most of the positions have not been filled, leading them to believe that the division might be shut.Satnav manufacturers have been looking for ways to diversify their brands and wearables, which utilize GPS and low-power technology, seemed like an easy fit. However, the wearable industry has seen sluggish performance all round, with Apple and Xiaomi the only real ‘winners’ in the last six months, as Fitbit has lost market share and Jawbone folded.Intel has supposedly also “eliminated” its wearable division, following the disastrous Basis Peak recall, which cost the company millions in replacements and refunds. David Curry Tags:#action camera#fitness tracker#Internet of Things#IoT#satnav#smartwatch#TomTom#wearable Small Business Cybersecurity Threats and How to…
Are you a military service provider or caregiver to a family member whose medical coverage falls under Medicaid? Are you unsure how their coverage may be affected by the Affordable Care Act? In today’s caregiving post we take a brief look at the impact the Affordable Care Act has on Medicaid.The Affordable Care Act (ACA) allows states to expand Medicaid based on the percentage of the federal poverty level. About half of the U.S. has opted to do this as of early 2015. These states have expanded Medicaid eligibility to adults earning up to 138 percent of the federal poverty level.The ACA also creates incentives for states to further develop Home and Community Based Services (HCBS) and to incorporate the programs into their state Medicaid programs, making services more widely available. HCBS are provided under federal waivers that allow states to provide services to qualified individuals. As a result, the scope of services may be limited, the populations served may be specified, and the approval to operate the waiver time may be limited. Medicaid is and remains a federal-state program that is administered by state governments.To learn more about Medicaid check out our Medicaid and Military Families: An Introduction training.Have a question for our military caregiving team? Let us know! We want to hear from you.
After guiding India to the World Cup final with an useful knock of 85, Sachin Tendulkar simply can’t wait to play one of the biggest matches of his illustrious career at his home ground in Mumbai.”It will be a wonderful occasion to play the final in Mumbai. All we would like is to remain calm and focussed and get the job done,” the man-of-the-match against Pakistan said at the post-match presentation ceremony.For someone who has been a member of the side that has won all its five World Cup matches against Pakistan, the legendary batsman was quick to admit that it would be a “memory that he would always cherish.”Someone who has always put the team before individual performance, Tendulkar lavished praise on young Suresh Raina whose unbeaten 36 provided necessary impetus during the death overs.”Raina played a special knock. When we started batting, I felt that 310-315 was par-score. But as the spinners came on the ball was stopping and coming. Then I thought that 265-270 will be a good score to defend,” Tendulkar stated.For him Virender Sehwag’s blitzkrieg at the onset gave him and others that extra bit of time to check out on how to proceed with the innings.”Viru got us off to a flier but then we needed to assess the situation. It was a difficult wicket to bat on and we needed to put up a good score. Full credit to our bowlers as they put up a fabulous show.”Skipper Mahendra Singh Dhoni also spoke in the same vein about how the wicket slowly became difficult to bat on as the match progressed.advertisement”If you take the opening partnership out, you would find that 260 was a good score to defend. May be we could have got another 20-30 runs,” was what the skipper assessed.The skipper admitted that his reading of the pitch was wrong but his seamers did a good job.”We read the pitch wrong but then our seamers bowled exceptionally well. That is why I didn’t need to use a sixth bowler. We don’t have any bowler who regularly hits 140 plus.”We have bowlers who have variations and can change plan accordingly. Ashish is a rhythm bowler and Zak (Zaheer) is really good with his variation. Even Munaf’s strength is bowling wicket to wicket as he has become really smart after playing in IPL.”Dhoni who has already led India to World T20 triumph back in 2007, said that his team is “ready for final.””It was important to peak at the right time. That’s the beauty of this game. But it’s important to do well on that particular day.”Dhoni’s counterpart Shahid Afridi was a dejected man at the end of it all.”I congratulate India for this win and wish them all the best for the final. But I should give credit to my boys for their performance. I am proud to lead these bunch of guys.”He praised Wahab Riaz who grabbed five for 46. “Wahab really bowled well.”But the skipper was critical about his batsmen. “The key would have been partnerships and we couldn’t get going. Also we played a few responsible shots. In the end, they played better cricket than us,” Afridi was forthright in his evaluation.About the decision not to take Powerplay till the end, Afridi said,”We thought that we would take the Powerplay when Bhajji would have finished his spell.”The Pakistan captain in the end “apologised” to the nation for letting them down.- With PTI inputs
AC Milan president Scaroni reveals new stadium plansby Carlos Volcano10 months agoSend to a friendShare the loveAC Milan president Paolo Scaroni has revealed plans for a new stadium.Scaroni says Inter Milan are also involved in the talks.“I am representing the owners, who invested a great deal of money, and dealing with important elements like the new Milan stadium,” Scaroni told reporters at the Christmas party for the youth team.“We are thinking of building a new stadium along with Inter.”Scaroni also spoke of the current form under coach Gennaro Gattuso.“We aren’t going terribly well, but we are fourth and that is the important thing. We need Milan to get back into the Champions League. It’s important to stay in fourth place.” About the authorCarlos VolcanoShare the loveHave your say