A Shrinking Realm of Substantive Justice

Every judicial decision in conflict of the above existential facts may inflict a wound over and above the several other wounds which are still bleeding and are inflamed over earth’s body.

Substantive justice is grounded in existential realities

Our “planet earth” is largely an unexplored genii. The land of political boundaries is less than 57 million square miles, a skimpy cover over a 197 million square miles of earth’s surface. Rest is all ocean.¹ Interestingly, the most extensive environment on our planet is the ocean. It has its own forests or Phytoplanktons. More than 50 per cent of earth’s oxygen comes from Phytoplankton forests in the ocean.² Through these habitats, millions of sea animals swim, crawl and drift across territories and contribute to the earth-saving operations of carbon sequestration at the ocean bed. While faults are normal geophysical realities of land, many new and more severe cracks (faults) have been seen at the bottom of the sea³ which only reveal and warn that human existence over this planet is but a fragile and transient reality. Any furthering of discussion on substantive justice would expect judicial sensitisation towards current existential crisis which spares none of the political bullies, emperors and honchos or races and species. Acknowledgement of the need for substantive judgments remains the primordial life line of human existence and a service towards posterity.

Every judicial decision in conflict of the above existential facts may inflict a wound over and above the several other wounds which are still bleeding and are inflamed over earth’s body. An enquiry into some relevant cases would reveal responses of courts to this ecological emergency which in turn will demonstrate their ability and willingness to deliver substantive justice. In fact, procedural fairness and substantive justice are not antagonistic demands, but together they harmonise and deliver substantive justice. For example, a significant ruling of Allahabad High Court Bar Assn. v. State of U.P.⁴, the Supreme Court overturned its Asian Resurfacing judgment⁵ to reinstate the need for procedural fairness as much as an indispensability of substantive justice when it overrules a mechanical order to expedite cases. This verdict, handed out by a five-Judge Bench comprising Chief Justice D.Y. Chandrachud, and Justices Abhay S. Oka, J.B. Pardiwala, Pankaj Mithal, and Manoj Misra mandated the interim orders passed by the High Courts staying trials in civil and criminal cases to automatically expire after six months from the date of the order, unless expressly extended by the High Courts. With reference to the wide-ranging powers granted to the Supreme Court under Article 142, the judgment clarified that these powers do not empower the Court to ignore substantive rights of litigants. While this Article can be invoked to streamline procedural aspects, it cannot be used to defeat the substantive rights of litigants which is a right to be heard before an adverse order is passed against them. While judgments bereft of the ideas of coexistence, care and compassion may obtain a temporary applause of populist approbation,⁶ they nevertheless have very short lives.

Substantive justice is not merely correcting or streamlining procedures to accommodate voice of all stakeholders, but goes beyond to facts not everyone knows or cares to know about. It is an ability to see the origin of the problem and circumstances in which it becomes a problem and how it would impact the society in a wider context of constitutional and ecological frame. Substantive justice is also about an ability to take to a holistic view of nature. A substantive research does not leave anything and anyone behind. Few decisions comprehend such a wider reach of justice. In recent times, Justice M.M. Sundresh and Justice S.V.N. Bhatti in State of Telangana v. Mohd. Abdul Qasim⁷ (hereinafter, “Telangana judgment”) have given a judgment which is in close proximity to the substantive domain of justice. A para is quoted below from the judgment:

63. …While adopting an ecocentric approach, the concept of inter-related existence has to be kept in mind. A narrow or pedantic approach should be avoided. While considering the economic benefits, the invisible value and benefits provided by the forests shall also be factored into. There has to be an inclusive approach, which should be society-centric, meaning thereby that all species should coexist with minimum collateral damage. The effort is to minimise the damage to the environment, even in a case where the need for human development is indispensable. While having a pragmatic and practical approach, courts will have to weigh in the relevant factors and thus, perform a balancing act.

Substantive justice is constitutionalism

Constitutionalism is the lighthouse of a wavering State. Justice Abhay S. Oka forcefully held personal liberty, secularism and the right to protest as fundamental to the constitutional values. He comfortably adapted law to contemporary challenges of climate change and increasing disasters in which human as well as non-human life both need protection, care and State support. Justice Oka’s landmark judgment in Vanashakti v. Union of India⁸ (hereinafter, “Vanashakti judgment”) wherein 2017 Notification on “ex-post facto environmental clearance” was rejected as it drew on critical analysis of the history of environmental jurisprudence. He observed unequivocally that the concept of an ex post facto environmental clearance is antagonistic to the core principles of environmental jurisprudence and stands in defiance of the 1994 Environment Impact Assessment Notification (1994 EIA Notification). A Judge delivers justice not from the silos of his courtroom but in full interaction with what exists in the rest of the universe. A para quoted below from the judgment resonates with the recent 16th Conference of the Parties held in October 2024, which warns that human activity has pushed the world into a danger zone:

33. Today, in the year 2025, we have been experiencing the drastic consequences of large-scale destruction of environment on human lives in the capital city of our country and in many other cities. At least for a span of two months every year, the residents of Delhi suffocate due to air pollution…

Constitutionalism gets noteworthy attention in a recent two bench judgment⁹ announced by Justice Abhay S. Oka, where he has clearly prioritized the realm of constitutionalism within substantive justice:

The authorities, especially the development authority, must remember that the right to shelter is also an integral part of Article 21 of the Constitution of India. This right can be taken away only by following due process of law. Moreover, our country is governed by the rule of law, which is an integral part of the basic structure of the Constitution. The residential structures of citizens cannot be demolished in such a summary manner without following the principles of natural justice’ and further sums up by reiterating in stronger words that the task of justice dispensation cannot be as arbitrary, ‘This is one more case of bulldozer justice. The officers of the PDA have forgotten that the rule of law prevails in our country’.

Many judgments have been rushed, instrumental and contrary to the objective of law, eventually emboldening corrupt and law abusing administrative agencies rather than restraining and penalising. The bulldozer led demolition (loosely referred to as Bulldozer Justice) of unauthorised structures ended up punishing the victims rather than the perpetrators of corrupt rent seeking networks, or the judgment on clearing city streets from dogs ended up in a similar manner as above only to add speciesism and impunity to cruelty. The pollution of sacred Ganga was allowed by the judiciary itself when the flow of national sullage and excreta into the river during the Kumbh Mela became part of a religious exactions.

What exactly is this realm of substantive justice which is circumvented in a large majority of judgments, which stand in compelling need to be corrected. It is difficult to bring them all on a table of resolutions as much of it springs from the Judge’s inner human virtues which is about the dignity and rights s/he attaches to life on earth. Remaining silent on shrinking space for substantive justice may create an irretrievable existential crisis. One can call it a form of justice that brings lasting happiness of higher virtues that matter for humanity and planet earth that liberates intellect from the narrow silos of utilitarian ethics legitimised as fair justice for human beings. Substantive ideas which enlarge intellect beyond narrow confines of science and also beyond the spiritual cages of ascetics, contemplates on critiques of injustices of anthropogenic advancement. Substantive justice provides a satisfactory assurance that the seeds of evil are prevented from germination and the wrong is affronted at its very source.

Substantive justice looks beyond compartmentalised selfish lives

There is no denying that, substantive justice is a true source of happiness in society. An ideal society may boast of this conquest of happiness. Bertrand Russell in his book, The Conquest of Happiness investigates sources of unhappiness which is largely due to human incompetence to look beyond his selfish compartmentalised life of “self”. This resonates with Gandhi’s Talisman for good life:

I will give you a talisman. Whenever you are in doubt, or when the self becomes too much with you, apply the following test: Recall the face of the poorest and the weakest man, whom you may have seen and ask yourself if the step you contemplate is going to be of any use to him. Will he gain anything by it? Will it restore him to a control over his own life and destiny? In other words, will it lead to Swaraj? For the hungry and spiritually starving millions? Then you will find your doubts, and yourself melting away.¹⁰

However, the essence of “complete justice”, as Aristotle frames it, lies in its holistic and inclusive approach and appropriate entwining with “rights” and “dignity” to all life forms. Aristotle in Nichomachean Ethics¹¹ explained it as “what we owe to each other” which in other words mean that justice is a relational design to weave a society. What Aristotle referred to as “complete justice” was nothing extraordinary but merely a design to live together. A theoretical framework to develop a substantive theory of justice has since then advanced into a direction of “biocentrism” rather than “anthropocentricism”. One of the most prolific philosophers of the 20th century Bertrand Russell in his discussion on ethics confers good life to “what is lived in awareness of others, which builds bonds with ‘others’ including the non-human universe of large impersonal forces, the wind, the sea, the mountains and the stars and even (if they exist) the entities of mathematics”. Russell attached great importance to how humans interacted with the world outside their own and in doing so they evolved towards increasing liberation from thoughts that kept them locked within divisive, hateful and racist beliefs. Kenneth Blackwell¹² calls this evolution as “the ethic of impersonal self-enlargement”. Justice is fair when it does not confine to mere contemplation of self but interacts and is empathic towards the universe outside one’s own narrow world. Russell’s Spinozistic Ethics (1632-1677) prevents him from taking scientific evidence as universal truth which courts have lately been provoked to do. He finds “something morally suspect, as well as wrong-headed, about attempts to reduce the vast forces of nature to human experience or to useful predictive devices enabling human beings to achieve their puny ends”.¹³ This is not to berate science but to draw attention to the phenomenal universe of nature about which science draws a disappointing reticence.¹⁴ Justice cannot be segmented or delivered in pieces such as an incomplete order that may condemn an illegal act but fail to understand the cause or take any action against the perpetrators to prevent its recurrence in future, ie; the 2025 Firecracker Order¹⁵ amending the Court’s verdict in Arjun Gopal v. Union of India¹⁶ by CJI Gavai which allowed green crackers without even assessing basic administrative capacities to administer such an order. Similarly, the Order in City Hounded by Strays, Kids Pay Price, In re¹⁷, Justice Pardiwala and Justice R. Mahadevan directed the removal of all community dogs from public spaces and their confinement in a single location without even assessing the high level corruption, negligence and apathy of Municipal Corporations or availability of shelters to confine the dogs. The judgement not only suffered from judicial application of mind in ordering what amounted to a ‘mass winter massacre of dogs’ but also inappropriately flaunted the ‘Emperor’s Clothes’¹⁸ of judicial legislation by dismissing a pre-existing ABC Notification of 2023 passed by the Parliament.

Judgments which remain highly dependent upon experts of modern science carry the fear of being reduced to segmented thoughts while the universe of contestations which dent substantive justice. Substantive justice may sympathise with the call for human progress and demands for developmental and scientific advancement but looks at the nature and all life forms in the context of carrying capacity of planet earth. A Judge, unknown to the direction and demands of sustainable happiness, who has lived in an unhappy disintegration of self against the everything “other” is encaged within instrumental or procedural fairness, something that s/he can see clearly. Hereinafter, justice becomes a “cleansing” or “scrubbing off” process, rather than a “redemption” or “liberation from waste or salvation of self”. The former looks at the other as “ugly, despicable, disposable” while the latter treats it as a source of “enlightening knowledge of existence” in the delivery of justice.

Substantive justice is inclusive ecocentrism

A small number of cases have brought out the defining constituents of substantive justice in the history of the Supreme Court in India. In Ashok Kumar Kalra v. Surendra Agnihotri¹⁹ explained:

50. It is well settled that procedural rules should not be interpreted so as to defeat justice, rather than furthering it. This is because procedural law is not meant to serve as a tyrant against justice, but to act as a lubricant in its administration. Thus, when Courts set out to do justice, they should not lose sight of the end goal amidst technicalities. In some cases, this means that rules that have traditionally been treated as mandatory, may be moulded so that their object and substantive justice is not obstructed.

or that the

59.2. …procedure should not outweigh substantive justice.

While procedural fairness was considered “handmaiden of substantive justice”, it shares strong bonds with “substantive equality” as brought out by, Justice D.Y. Chandrachud in a seven-Judge Bench verdict of the State of Punjab v. Davinder Singh²⁰. A case analysis of the Telangana judgment²¹ decided by the Bench of, Justices M.M. Sundresh and S.V.N. Bhatti²² reveals some enlightening steps towards a substantive judgment. This analysis explores the underlying philosophical message and semantic deconstruction of terminology, language and statements adopted by the petitioners. A repeat usage of some expressions which included revisiting metaphors of language such as “a plea for review…”, “exercise of due diligence”, “forests”, “land markets” and “ecocentrism”. A critical analysis of underlying assumptions implicit in the expressions of law and words used in the language of law became the direction of the judgment under the Order 47 Rule 1, Civil Procedure Code, 1908²³. This analysis attempted to find the true significance of why particular expressions are suggestive of a kind of action, i.e., that “the court while exercising the said powers has to first check the evidentiary value of such discovery”, or, what would one mean by the use of the term that, “the court must have sufficient reason to deviate from the formulation rule of making”, or when it establishes that “the important matter must be available at the time when the decree was passed… as a matter of Rule”. The mens rea becomes a powerful tool in this critical analysis. A judgement which looks for subjective/substantive ideas from the external world would not hesitate to align with legal anthropology, deep ecology and ecological studies as jurisprudential concepts. An actual meaning of words which define a judgement such as ‘sustainable development’, ‘right to development’ and the ‘environment Rule of Law’ are effective expressions in their relational context [Para 25 (vii)].

A substantive judgement brings immense learning for posterity. The judgement in the Telangana case reflects upon the interrelationship of Chapter III and Chapter IV of the Constitution and the spirit of Constitutionalism which is basic to a biocentric judgement.

‘These two provisions, Art. 48A & Art. 51A qua a forest ought to be understood in the light of Articles 14, 19 and 21 of the Constitution of India, 1950. We say so, as they represent the collective conscience of the Constitution. If the continued existence and protection of forests is in the interest of humanity, various species and nature, then there can be no other interpretation than to read the constitutional ethos into these provisions’.

Even expressions of “laments” or “regrets” within a judgment indicate learning about the value of the damages and losses which were irretrievable. The judgment seems to be stating that only rational creatures can know and love God, to fulfil the purpose of creation (Summa Contra Gentiles, 1270) or worthy of being virtuous. Bertrand Russell’s philosophical position of “enlargement of self” or higher human evolution suggests this position within which, Telangana judgment²⁴ bemoans the destruction of nature in a para quoted within the judgment:

44. …Man is the most insane species. He worships an invisible God and destroys a visible Nature, unaware that this Nature he’s destroying is this God he’s worshiping.

— Hubert Reeves

Canadian astrophysicist

“Land” is the most substantive ingredient of most civil and criminal judgments. An understanding of subjective human bonding with land is more powerful than records of its ownership. The position taken by the Telangana judgment²⁵ is deeply connected to wilderness philosophy of the ancient Himalayan sages and the American wilderness environmentalists such as Aldo Leopold who wrote the “The Land Ethic” in A Sand County Almanac²⁶ and developed new arguments and articulated a moral vision for human relations to nonhuman nature, which he called the land ethic. Also, Henry Bugbee’s The Inward Morning²⁷ which is a rare chronicle of self-exploration to introduce mechanical minded humans to the calm of nature that despite being human knows nothing about. The judgment quotes the statement made by the Tribal Chief Seattle, way back in the year 1854, in his letter to the offer of George Washington, the former First President of the United States of America, to buy their land:

Every part of the earth is sacred to my people. Every shining pine needle, every sandy shore, every mist in the dark woods, every meadow, every humming insect. All are holy in the memory and experience of my people… . This we know: the earth does not belong to man; man belongs to the earth. All things are connected like the blood that unites us all. Man did not weave the web of life; he is merely a strand in it. Whatever he does to the web, he does to himself.

The Telangana judgment²⁸ acknowledged and highlighted State instrumentalities which provoke deviation from substantive justice. It says:

3. We are dealing with a case where an instrumentality of the State, despite a categorical finding of the suit property being a forest land, took different stands…

What is significantly of value in the judgment is the fact that while the judgment paid much attention to the instrumental and procedural correctness required within the Andhra Pradesh Forest Act, 1967 it simultaneously made passionate appeals selected from a galleria of verdicts²⁹ of judicial sages such as Justice V.R. Krishna Iyer and others. This particular judgment is an example of intensive labour involved in the delivery of justice and especially in identifying basic constituents which enable verdicts in the flavour of substantial justice.

Substantive justice is visionary enforcement strategy

Most well worded judgments fail to deliver justice as they miss the visionary appropriately clear enforcement strategy. For example, the right to life under Article 21 of the Constitution of India includes the right to live in a pollution free environment. The Environment (Protection) Act, 1986 and Articles 48-A and 51-A of the Constitution coexist to give effect to the right to life. (para 32). Even the concept of development comes under the scrutiny of the Vanashakti judgment³⁰ when it raises a pertinent question, “Can there be development at the cost of environment?” Generally substantive justice is criticised for “good talk sans substance” for their absence of enforcement strategies to give effect to the objectives of governance. However, this judgment authored by Justice Oka ends with clear strategic instructions to the government (para 36):

1. We hold that the 2017 Notification and the 2021 OM as well as all circulars/orders/OMs/notifications issued for giving effect to these notifications are illegal and are hereby struck down.

2. We restrain the Central Government from issuing circulars/orders/OMs/notifications providing for grant of ex post facto EC in any form or manner or for regularising the acts done in contravention of the EIA notification.

The right to life has broadened over the period of time with visionary Judges contributing to expanding its realm for better enforcement. However, a large majority of important substantive judgments have failed on the enforcement strategies such as the important judgment on bulldozing homes and structures by Justice B.R Gavai and Justice K.V. Vishwanathan in Directions in the Matter of Demolition of Structures, In re³¹ (hereinafter, “Bulldozer Justice”). The judgment begins with a reflection on its deep emotional narrative about human shelters:

1. To have one’s own home, one’s own courtyard — this dream lives in every heart. It is a longing that never fades, to never lose the dream of a home.

It acknowledges that the right to life is a fundamental right and with the expanded scope of law, the right to shelter comes within its ambit. (para 87) It has two major lacunas which leave a lot of scope for non-implementation of instructions by State agencies and also increased litigation in all courts. First lacuna is concerning the straitjacketed use of the term “unauthorised structures”:

94. At the outset, we clarify that these directions will not be applicable if there is an unauthorised structure in any public place such as road, street, footpath, abutting railway line or any river body or water bodies and also to cases where there is an order for demolition made by a court of law.

An unauthorised living habitats indicate a historic injustice which has become a problem of governance. If treated in isolation of government officials seeking rents from unauthorised structures it legitimises the historic injustice to a welfare administration in a city. A judgment that simply deals with bringing down structures would embolden impunity and continuation of rent seeking and corrupt administration. This keeps the verdict in Bulldozer justice outside the realm of substantive justice. The First, lacuna in the order is that it did not reflect upon the origin, rise and continuance of unauthorised colonies despite an overstaffed and financially strong municipal governance. Most unauthorised areas in the cities are maintained by none others than the Ward Councillors or urban local bodies which ensures their electricity, water connection, sewer lines and roads. Many of them have also been paying property taxes. It is no secret that urban local bodies exchange a huge income in rent through such surreptitious settlements. These unauthorised structures have grown in every city and in all localities. A need for livelihood and developmental deficits brings a flood of migrants to big cities where they get affordable shanties in unauthorised areas. Notwithstanding the poor, even the city’s rich have expanded over unauthorised areas using their influence over corrupt municipal corporations. Second lacuna in the judgment is, its blanket order to bring down unauthorised structures³² which nonetheless, vindicates all illegalities and corruption that prevails in municipal bodies. The real beneficiaries of unauthorised structures which work as cartels of real estate and remain in power as the order at no point addresses a strategy to break these cartels. The penal effect of the order is limited to post-demolition situations only. Therefore, despite the best judicial intent, it reflects badly on the judicial knowledge of governance realities. Such an order not only fails to stop rent-seeking networks that operate under the protective umbrella of municipal bodies but also colours a corrupt official as a benevolent leader and a compliant State servant even though he should have been the one facing penalties.

A visionary strategy for enforcement is better done through an inclusive and holistic planning involving all stakeholders and levels of governance involved in an illegal act. There are many ways of holding officials accountable, even retrospectively, for the wrongs they commit. In Issues Relating to the Ecology and Environmental Conditions Prevailing in the State of Himachal Pradesh, In re,³³ delivered by Justice Vikram Nath and Justice Sandeep Mehta an Amicus Curiae was appointed to prepare a set of relevant questions for the State Government to respond to. Since the Report on ecology and environment was submitted by the State in pursuant of the court order of 28 July 2025, the amicus made a detailed study of it to highlight key issues for the Court to look into. These highlighted issues indicate efforts made by the Court to address concerns of contemporary significance so that the order could deliver sustainable solutions. The highlighted areas included specific queries so that accountability is narrowed down and vagueness could be reduced. Questions as area specific as these were put across, i.e. zoning plans and factors (seismic, landslide areas or ecosensitivity etc) tree cover, compensatory afforestation, climate change related policy projections, disaster management plans, roads constructed (in the past and future plans) hydroelectric projects and their cumulative impact, mining and use of heavy machinery and tourism including multi-storey buildings, details of footfalls and restriction plans if any to monitor industries and hotels. Such a segregation of issues made State accountability unambiguously possible. It also made it possible for the Court to enforce its directive to the State, requiring the submission of its response to the above queries along with supporting ³⁴ There is no denying the fact that an intensive research is required to highlight mis-governance and achieve substantive justice. It is worthwhile to mention that a large majority of judgments miss out on deconstructing the problem from its source and end up passing orders which remain unenforceable on ground. While a reasonable judgment would provide comfortable space for audi alteram partem, there are judgments which leapfrog socio-ecological realities on ground and turn a blind eye to soft laws which govern environmental ethics. A conscious effort towards appropriate research, enabling participation of all stakeholders and acknowledging governance imperatives in the judicial order has worked better than a reactive order passed on a provocative news report under suo motu category of judgments.

Substantive justice shines through dissenting judgments

The dissenting judgments in an instrumentalist, State dominated Benches are lighthouses of enlightening ideas. Some of the lead dissenting judgments which were delivered despite a highly antagonistic ethos, were proved right over the years. A dissenting judgment is a bold show of courage and intellect. It is often observed that Judges who are unable to suppress their conscience for long in favour of a deeply held principle ultimately let it guide their decisions, regardless of the personal consequences they may face. Wittgenstein, the famous mathematician, who developed one of the most admirable mathematical logic into philosophy ends his treatise Tractatus Logico-Philosophicus to say that “whereof one cannot speak, thereof one must be silent” and just what we cannot say, is the most important in life because philosophy begins only when arguments go silent. It is for this reason that dissents hold high significance in the history of jurisprudence. The Black’s Law Dictionary defines a dissent as “an explicit disagreement of one or more Judges of a court with the decision passed by the majority upon a case before them”³⁵ and for that reason mere failure of a Judge to vote is not a dissent³⁶ as could be inferred in courts.

The American Supreme Court has records of several instances when the majority Judges and the Chief Justices wanted to press for a unanimous decision and a united voice yet dissents were unavoidable in most situations as some never wanted to compromise their free spirit to reveal the embedded flaw in the judgment. At one time when the Court was at the peak of persuasive unanimity an eloquent defence of dissenting opinion came from 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”.³⁷ Another, Justice Oliver Wendell Holmes who spent much of his thirty-year term on the Supreme Court dissenting against the use of the Fourteenth Amendment to invalidate laws passed by State and Federal Legislatures in the end found his dissent prevailed over the majority judgment. Dissents are corrections to laws and incrementally change the law.

Dissents against “Racism” which had much support in United States of America were not easy by either the white or a few negligible number of black Judges. The Preamble of the Constitution of United States³⁸ also did not mention the much needed term “equality”. The Dred Scott decision of 1857 had refused to even consider Afro-Americans as citizens of USA. Much of the outside world was not aware of the fact that despite President Lincoln’s ‘Emancipation Proclamation’ on January 1, 1863 “that all persons held as slaves” within the rebellious states “are, and henceforward shall be free”, yet no freedom came till the XIII Amendment in 1865 which finally abolished slavery. United States was practicing a much legitimized racism, as a right to education buy only in separate schools or to live in same cities but remote localities for the Afro-Americans per se. In 1868 through XIV Amendment and more through its ‘due process clause’ changes towards equality eventually started taking place. It is in this background that the dissenting judgement of Justice John Marshall Harlan’s who established in Plessy v. Ferguson³⁹ that “Separate but Equal” cannot co-exist, is held with high respect. The story of dissent in India is not very different towards an achievement of substantive equality before law.⁴⁰

Dissent is not easy to handle in any Supreme Court. Justice Harlan Fisk Stone who served as Chief Justice of the Supreme Court in 1941 encouraged individual Justices to express their dissenting opinions as they could not be ignored. Following this, the Supreme Court was overwhelmed with an astounding frequency of dissents which subsequent Chief Justices found challenging to manage. In fact, it was during this period that the Supreme Court of United States enhanced its respect by presenting itself as a place where dissensions were treated as normal for a higher ideal of an evolution of law and also as a dividend of independent judiciary. Nevertheless, a researcher on these dissents in the Supreme Court of United States observed that: “The dissent has been responsible for keeping the Supreme Court in check and assuring that our Court is run by the Constitution and laws of the country, not by the men and women that wear the black robes”.⁴¹ It is only with time that a dissent is proven right and the substantive justice takes over the fragile existence of instrumentally justified dominant opinion.

A Judge who delivers a dissenting judgment ought to be extremely well versed with the anthropology and history of law but also a show of an unbiased, equidistance from rival ideologues to remain ethically strong. Who would not be reminded of Justice Radha Binod Pal in International Military Tribunal for the Far East Trials (1946), Justice Khanna in ADM, Jabalpur v. Shivakant Shukla, Justice B.V. Nagarathna on demonetisation, Royalty on minerals and appointment of Judges who have stood as sole dissenters against a mighty State for the cause of substantive justice.⁴²

When Justice Radha Binod Pal (1886-1967) of the Calcutta High Court was appointed to the International Military Tribunal for the Far East, he was the sole Asian in the jury. His dissenting judgment, in The United States of America v. ARAKAI Sadao⁴³ during the Tokyo Trial (International Military Tribunal for the Far East), was pathbreaking for Asian resurgence in the post second world war. The judgment was 8 to 3 (dissent of Dutch, French and Indian members). The minority judgment was bold and unique in the manner in which it questioned racism being practiced by white Judges to punish the vanquished even though the victors committed the same war crimes. However, Justice Pal decolonised law from its western incarceration and also acknowledgement the intellectual bankruptcy of western judicial lobbies at the Military Tribunal for the Far East. The dissenting judgment rejected the charge of conspiracy against Japan by calling it a mental offence, an intent for which the international law was not yet ready to address. He daringly called it “a victor’s justice” as “they were laying down law not for themselves but for the trial of the vanquished leaders.”. The development of international law soon after this dissent became stronger to condemn racism in international law and inadvertently the dissent became one of the strong causes to the advancement of Asian resurgence.

One ought to be bold in giving a dissenting opinion as it brings some or the other form of penal action in the form of deprivation of State support. The revered, Justice Hans Raj Khanna who was the lone dissenter on the bench in ADM, Jabalpur v. Shivakant Shukla⁴⁴ was superseded by, Justice M.H. Beg for the position of Chief Justice. He had challenged the detention orders without trial under the Maintenance of Internal Security Act, 1971 (MISA) that followed the proclamation of emergency under Article 359 of the Constitution. The orders prohibited and suspended the right to move any court for the enforcement of the rights conferred by Article 19 and that no writ of habeas corpus lay against detentions as “Rights” under Part III of the Constitution remained suspended during the period of emergency. In retrospect it appears shocking for human conscience to believe that the magnificent Supreme Court of India could have just one lone judicial voice to speak for the protection of Chapter III, which constituted the most sacred part of the Constitution, almost our freedom struggle in a frame of Constitutionalism. Thirty-five years later, after the benefits were already enjoyed, at least one fellow Judge, Justice P.N. Bhagwati had a surge of judicial conscience as he apologise for the brazen judgment admitting that “I was wrong. The majority judgment was not the correct judgment. If it was open to me to come to a fresh decision in that case, I would agree with what Justice (H R) Khanna did. I am sorry (for the judgment).” He lamented, “if not a disgrace, the case was something for which the Supreme Court should be ashamed” and therefore in atonement expanded the scope of Chapters III and IV to the extent of rewriting Articles 14, 19, 21 and 32.⁴⁵ Justice Khanna’s autobiography Neither Roses Nor Thorns⁴⁶ is a masterpiece story of those who stand by substantive justice. His dissent was proved right when the nine-Judge Bench judgment in K.S. Puttaswamy (Privacy-9J.) v. Union of India⁴⁷, overturned the majority judgment in ADM Jabalpur case⁴⁸ and held that the right to privacy is intrinsic to life and liberty under Article 21, protected by Articles 14 and 19 of the Constitution. The price was also paid by the three visionary craftsmen Judges of the Basic Structure Doctrine in the Kesavananda Bharati v. State of Kerala⁴⁹. Despite being the three senior most Judges of the Supreme Court, Justices J.M. Shelat, A.N. Grover and K.S. Hegde were superseded by Justice A.N. Ray as the 14th Chief Justice of India.

Some of the recent attempts to drive substantive content into some crucial judgments has been made by Justice B.V. Nagarthna through her dissenting notes. Her dissent in the Collegium’s appointment of Judges highlights three important factors that deprive one from substantive justice; first, is purely personnel ethics of promotion as supersession of 56 Senior High Court Judges⁵⁰ who were meritorious, more experienced and stood eligible for promotion. Second is the ethics of democratic representation as these superseded Judges hailed from States which were not represented in the Supreme Court. The collegium already has disproportionate number of Judges from the Bombay, Punjab & Haryana, Allahabad, Madhya Pradesh and Gujarat. Third, is professional ethics of constitutionalism, in the manner of Collegium’s functioning. Collegium has been taking decisions in an opaque manner which is “counterproductive” to the administration of justice as neither the deliberations nor the minutes of meetings are ever shared or made public. The three objections are basic to judicial transparency and accountability which continue to remain the sustaining pillars of constitutionalism yet not spoken about in a large number of recent judgments churned out of the Supreme Court.

Justice Nagarathna’s sole dissent in Mineral Area Development Authority v. SAIL⁵¹ (hereinafter, “MADA”), was a hard worked logical analysis of at least fourteen previous judgments related to mines and minerals development in India. She believed that the entire judgment including its undercurrents should be read before negating it, as every judgment of a court of law is not merely a piece of legislation but one pregnant with reasoning and is a precedent to succeeding Benches. (para 27)

The dissent in the MADA case⁵² centred around “royalty” as envisaged under Section 9, Mines and Minerals (Development and regulation) Act, 1957 (MMDR Act) if it was a tax or an exaction. The dissent gave a long analysis on the subject dissented upon, i.e.

1. Nature of royalty and tax: While the majority judgment said that royalty was not a tax, Justice Nagarathna disagreed on grounds of the statutory framework of Act which was passed by Parliament. The dissent note analysed and envisioned the federal frame of the Constitution namely Entries 49 and 50 of List II and Entry 54 of List I in the Seventh Schedule of the Constitution. Further, to this, the meaning of Sections 2 and 9, MMDR Act was deconstructed to conclude that the Royalty is in the nature of a “tax” or an “exaction”. If one goes by the majority judgment it would suggest that Royalty and tax would be separate earnings for the States. In the dissent, this was looked as a bizarre situation demanding double taxation, provoking interstate competition, increasing cost of minerals and metals and destroying ecology and environment. The deconstruction that was reached in the dissenting note on taxation over the mineral bearing lands and on the value of the mineral is an enlightening piece of discussion and would definitely be a source of insight for future judgments. The limitation set by the Parliament on the legislative competence of States to levy tax, impost or fee on the exercise of mineral rights also provides insight into the functioning of Central and State institutions within the Constitution. After a long critical enquiry of reading the Constitution in the context of Section 9, MMDR Act, certain imperatives of country’s land ecology, intra-generational justice and equity were brought out. It is on the basis of deep critical analysis that the dissent rejected the judgment in State of W.B. v. Kesoram Industries Ltd.⁵³ (Kesoram) as incorrect while the India Cement Ltd. v. State of T.N.⁵⁴ (India Cement) as correct. The dissent note went further to insist that the Kesoram judgment⁵⁵ ought to be overruled. The holistic and comprehensive wisdom investigated in the interconnectedness of legislative provisions and land ecology makes the dissent note a judicial pearl of wisdom and draws a close link to the opening arguments of this article on how cautious should one be on excavating land over which lies the whole ecology of life. Time may unfurl its wisdom just as it did with the dissent note in the ADM Jabalpur case⁵⁶ to imbibe corrections suggested in these dissenting judgments.

Conclusions

Substantive justice provides hope against an absolute instrumentalist view which seems to be increasing in a technology-driven society where community bonds are weakening. While it is concerned with the right interpretation of the content of law it also demands substantive information, understanding and courage. It takes place within the legal principles created by Parliament and the courts, the anthropology of moral and cultural values of the society where the seeds of law are sown and the behavioural and attitudinal norms which influence governance. Instrumental or procedural justice is a bedrock of substantive justice but left alone it is elusive and unreasonable. The debate between a deontological and consequentialist view of justice settles on a balanced approach but the value, understanding and human sensitivity to the rights of human and non-human individuals and communities grows within a universe which needs respect, protection and conservation. The dissenting judgments have remained the lighthouses of a long and disruptive journey to achieve substantive justice.