A COMPARATIVE ANALYSIS OF JUDICIAL DISSENT AND ITS CONTRIBUTION TO HUMAN RIGHTS LAW IN INDIA AND THE UNITED STATES OF AMERICA

Abstract

The independence of the judiciary is one of the most important aspects of a liberal democracy governed by the rule of law. The judiciary adjudicates on legal and constitutional disputes in accordance with the law, which is a difficult task in and of itself.  There are various factors that the judiciary takes into account when deciding upon different legal matters. When a court decides on a case unanimously, it is known as a unanimous judgement. However, the bench may also be divided, where judges do not concur with each other, resulting in a minority judgement. Over time, minority judgements often come to be voiced by the majority. Although dissenting judicial opinions have been recognized through legislative enactments and constitutional amendments and often go on to become the law of the land, they remain a neglected area of legal theory and jurisprudence, and thus need to be explored. Dissent is a sign of a healthy democracy; it is one of the most important aspects of the right to freedom of speech and expression. Judicial dissent has been a regular feature of constitutional courts in both India and the United States of America. Therefore, in this paper, the author analyzes the notion of judicial dissent and its relevance in human rights law before interrogating the process through which a once-neglected dissenting opinion can become the majority opinion and the law of the land. Finally, this study highlights the importance and contribution of judicial dissent in human rights law in India and the United States of America.