DISSENT IN CONSTITUTIONAL CRISIS: A COMPARATIVE PERSPECTIVE EXPLORE HOW CONSTITUTIONAL CRISES ARE NAVIGATED THROUGH DISSENTING OPINIONS

AUTHOR – PRATYUSH SACHAN, STUDENT AT AMITY UNIVERSITY

BEST CITATION – PRATYUSH SACHAN, DISSENT IN CONSTITUTIONAL CRISIS: A COMPARATIVE PERSPECTIVE EXPLORE HOW CONSTITUTIONAL CRISES ARE NAVIGATED THROUGH DISSENTING OPINIONS, INDIAN JOURNAL OF LEGAL REVIEW (IJLR), 4 (1) OF 2024, PG. 1342-1376, APIS – 3920 – 0001 & ISSN – 2583-2344.

ABSTRACT

This dissertation explores the intricate dynamics of dissent within constitutional crises through a comparative lens, aiming to elucidate how dissenting opinions contribute to the navigation of such crises across different constitutional contexts. As constitutional crises increasingly emerge as pivotal moments challenging the stability and legitimacy of legal systems worldwide, understanding the role of dissent becomes paramount. The study investigates various forms of dissent, spanning judicial, legislative, and executive domains, within the context of constitutional crises.

Drawing on a comparative approach, the research examines historical and contemporary instances of constitutional crises from diverse jurisdictions, such as the United States, United Kingdom, India, and others. By analyzing dissenting voices and strategies deployed during these crises, the study seeks to uncover patterns, divergences, and insights into the function and impact of dissent in mitigating constitutional turmoil.

The dissertation delves into the theoretical underpinnings of dissent within constitutional frameworks, exploring its conceptualization and significance in legal theory and practice. It also investigates the institutional responses to dissent during constitutional crises, including judicial interpretations, legislative debates, and executive actions, to discern how dissent shapes the resolution and management of such crises.

Through in-depth case studies and comparative analyses, the research aims to contribute to a nuanced understanding of the interplay between dissent and constitutional crises, shedding light on the mechanisms through which dissent influences legal and political outcomes. Furthermore, the study evaluates the implications of dissent for democratic governance, rule of law, and constitutional stability, offering insights into how constitutional systems can effectively accommodate and respond to dissenting viewpoints in times of crisis. Ultimately, this dissertation seeks to enrich scholarly discourse on constitutional law, comparative politics, and legal theory by providing a comprehensive exploration of dissent in the context of constitutional crises, offering valuable perspectives for policymakers, legal practitioners, and academics grappling with the complexities of contemporary constitutional governance. Both the concept of dissent and the “rule of law” have a revered status and are often referenced. However, in recent events such as the Black Lives Matter protests, widespread public dissent over events such as the police killing of George Floyd has highlighted a significant challenge to the compatibility of these values. This tension causes extensive theoretical studies of the basic concept of the rule of law, which have yet to be thoroughly investigated by legal scholars. Although there is general agreement on some formal aspects of the rule of law, formal definitions often focus on the procedural aspects of the rule of law, especially those related to the principle of legality. However, many critics blame this formal definition and argue that for the concept of the rule of law to be meaningful, it must include substantive elements such as respect for private property or fundamental human rights. In this discussion, I argue that there is an important middle ground between these two perspectives. Although the rule of law may not encompass all civil and political rights, its very nature requires that fundamental values ​​be upheld beyond mere formality. While the rule of law cannot be stretched to achieve all desired outcomes, its parameters must not be arbitrary; they belong to the concept itself. A closer examination reveals fundamental common principles at the intersection of formalist and substantive approaches that are substantively sound but necessary for a formalist rule of law framework. At the core of this approach is the recognition and tolerance of differences as a decisive factor.