Judicial independence is not limited to freedom from political or institutional pressure or popular opinion. This was emphasised by the Supreme Court judge, B.V. Nagarathna, when she said that it also meant that each judge was free to express his or her view of the law, even when it diverged from the opinions of other judges. Speaking at the Kerala High Court, the judge described dissent as an expression of intellectual autonomy. Expressing a dissenting opinion without fear or favour for the sake of institutional integrity alone — presumably the integrity of justice and the Constitution in this case — would comprise judicial independence in its most enlightened form. Constitutional conviction is the foundation of a judicial opinion; it cannot be diluted or negotiated for the sake of consensus. By identifying dissenting opinions within the judiciary as a form of unwavering conviction and of freedom, the judge underlined a principle of internal independence, distinct from the neutrality in the face of external pressures. This is an illuminating view of democratic principles; it makes dissent an integral part of it even up to the highest levels. The judge added that judicial independence is particularly important in cases of judicial review where legislation may have to be set aside or executive action restrained. This is a delicate matter, since it may have political consequences, but these become unimportant when a judgment is based on the courage and the conviction of each judge.

Justice Nagarathna’s comments open up the larger issue of the attitude to dissent by courts, particularly the lower courts. In the last decade especially, political dissent among the people has been targeted by the State, with large numbers of dissenters, critics and campaigners being charged under different laws, often under the Unlawful Activities (Prevention) Act. The stringency of the UAPA makes bail difficult, but lower courts are in any case miserly with bail if the offence is of dissent. Yet the Supreme Court has repeatedly urged the necessity of bail, saying that it is the rule and jail is the exception. The enlightened attitude of the Supreme Court towards dissent is not usually reflected in the actions of the lower courts. If Justice Nagarathna’s principles are applied in their broadest sense, the lower courts, too, could review their general approach to dissent.