We must not confuse dissent with disloyalty. When the loyal opposition dies, I think the soul of America dies with it - Edward R. Murrow
The General Elections in 2019 were different. Not in the sense of their outcomes but what came to be known about the internal deliberations within the Election Commission. There haven’t been very many occasions in the past when the differences between the Election Commissioners came out in the open when the election process was underway.
One of the Election Commissioners, Ashok Lavasa had apparently dissented when issues relating to the violation of the Model Code of Conduct by the Prime Minister, Narendra Modi, came up for consideration before the Commission. The issue came to be highlighted in some segments of the media. The occurrence, if it indeed was one, also raises the following issues that are not related to the merits of the case but to the idea of dissent and the manner in which dissent is expressed:
Should there be dissent/difference of opinion?
What is the purpose of dissent/difference of opinion?
Is there dissent/difference of opinion in the bureaucratic domain?
Should there be a public display of dissent/difference of opinion?
In the Bhim Koregaon case, Justice D Y Chandrachud clearly brought forth the need for dissent: “Dissent is a symbol of a vibrant democracy”.
No one will doubt that it is. Democracy thrives on the differences of opinions. Debates are the essence of democracy. There can’t be a debate if everyone agrees on an issue.
Long before the Koregaon case, the purpose of dissent was articulated succinctly by Justice H R Khanna way back in 1976 in the case of ADM, Jabalpur vs. Shivkant Shukla (AIR1976 SC 1207), when it was being argued that the right to approach the court for enforcement of Fundamental Rights was suspended during the Emergency. Justice Khanna, while dissenting with the majority, opined that “a dissent in a court of last resort… is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later discussion may possibly correct the errors into which the dissenting judge believes the court to have been betrayed”. Ultimately, what Justice Khanna stood for became the law. Dissent brings forth certain aspects of an issue that may not be held to be to be valid by the majority at a particular point in time but keeps the door open for wisdom dawning at some later date.
All the debates so far have been around the judicial and quasi-judicial domains where the dissenting individual/s enjoyed the same status as others but had a differing points of view. There are indeed differences in opinions, as there should be, within hierarchical structures, like the bureaucracy, as well. However, very rarely do they take the shape of dissent, as once a decision gets taken, everyone down the hierarchy abides by the decisions and there is no public display of the differences that may have existed earlier.
However, what is more, troublesome within the bureaucracy is the increasing tendency amongst civil servants to not air their views even during the course of internal discussions on account of the perceived risks associated with airing such views. Moreover, such views don’t get to be known generally in the public domain except when they get revealed in the context of an inquiry/investigation or in a subsequent written memoir.
The risks entailed in airing such differences of opinion in a hierarchical structure are much higher, as the superior authority can hold such dissenting views against the officer and penalise him through adverse mention in his Annual Confidential Report and/or transfer him to a punishment post and the like. But, despite such risks, there are officers who do air their views in hierarchical structures as well. However, barring a few exceptions, they don’t necessarily go to town with such views.
As a civil servant, there were a number of instances when one was faced with such a dilemma. One such occasion arose in 2003. When posted as Secretary, Horticulture in Uttar Pradesh, I got a cryptic written order from the Horticulture Minister to suspend a Deputy Director. Under the extant rules, the Minister had the power to suspend this officer. However, the directive did not list any reason for suspension. The concerned officer was not only efficient but enjoyed the reputation of being honest. An informal inquiry revealed that the Minister was seeking certain favours from the officer, who had expressed his inability to comply.
Also Read: Ethical Dilemmas of a Civil Servant: honesty alone is not enough
Hence, a directive was issued to suspend him. This was the prevalent strategy then in the State to browbeat officers into compliance. The option before me was either to comply with the orders or face the consequences myself. Using a particular provision relating to procedures, I sent a dissenting note to the Chief Secretary for onward transmission to the Minister. The Chief Secretary chose to sit on the file (red tape can be beneficial on occasions) and the Minister could not muster the courage to speak to the Chief Secretary. Hence, despite a written directive, the suspension order was not issued. However, the Minister did manage to speak to the Chief Minister in a different context. I never got to know what transpired between them but I got transferred. This was a small price, if at all it was one, to be paid to protect an honest and efficient officer from suspension.
Dissenting views are articulated in a number of domains and it should happen in a vibrant democracy. However, whether there should be a public display of such views is a key question. What happened between the CBI Director and the Special Director in 2018 or the press conference held by a few judges of the Supreme Court during the same year brought indignity and disrepute to the concerned institutions. These were instances of not merely harbouring a dissenting view, these were the public display of dissent bordering on exhibitionism. This is indeed worrisome. It may be considered a sacrilege to advise the honourable judges (one of them rose to become the Chief Justice) because they are the final judicial authorities to decide what is right and what is wrong, but as far as other institutions are concerned, they would best be advised not to resort to a public spat. After all, there are righteous ways of settling a dispute by honourable men and women.
