“Handful of lawyers bent on splitting the institution”, BCI reacts to Dushyant Dave’s Collegium critique published on Bar & Bench

“Handful of lawyers bent on splitting the institution”, BCI reacts to Dushyant Dave’s Collegium critique published on Bar & Bench

Bar & Bench

The Bar Council of India (BCI) through its Chairman Manan Kumar Mishra, has released yet another statement to defend the judicial institution against “mala-fide attacks”. The statement issued today starts off by saying,

So long, a criticism is healthy and unintentional, it is welcomed but the moment it becomes motivated and is made to serve some vested interest, it takes the shape of mischief and misconduct.” 

This time, the catalyst is an article penned by Senior Advocate Dushyant Dave, in which he had raised concerns regarding the functioning of the Supreme Court Collegium and the manner in which judges are being elevated to the Supreme Court.

The BCI statement dated today terms the issues raised in the article, titled ‘Collegium – Thy name is Reciprocity‘, as baseless and absurd. It goes on to criticise Dave’s misconduct, stating,

… we find that Mr Dave was very active in supporting the false case lodges for harassment of Hon’ble the Chief Justice of India; And now he is trying to connect that dead case with the subsequent recommendations made by the collegiums. 

A careful examination of these comments are altogether devoid of any substance. It appears that a few lawyers of Supreme Court are in a habit to be in lime-light in media by making such absurd press statements…”

It also states that the Bar should be circumspect in criticising the Court or Collegium decisions, since the judges are not in a position ordinarily to personally defend themselves.

“…The Bar cannot appreciate such things; few individual Advocates have been trying to take undue advantage of the silence of Hon’ble Judges. We know that the Hon’be Judges, the Members of the collegiams cannot come forward, issue press release to defend or support their each and every decision.”

It goes on to hint that there is a general pattern at play by some lawyers to frequently criticise the Court and the Collegium in order to gain favourable orders. Criticising the same, the BCI statement observes,

What we find is that Mr Dave and 3-4 other lawyers are trying to connect every decision of Supreme Court of Collegiums with the recent harassment case plotted against Hon’ble the Chief Justice of India…

The Bar cannot appreciate such attitude and the bar is of clear opinion that these handful of lawyers are bent upon to spilt the institution for serving their self-interest. The sole intention of making such frequent comments against the Judgments/Orders of Supreme Court or of Collegiums, is to lay undue pressure on the Judges of Supreme Court; we find this modus being adopted for last few years in order to get favourable orders from the Judges of Supreme Court and the High Courts.

Further, it is also stated that as and when it is felt that the Collegium has erred in making recommendations, the BCI has raised objections in decent ways.

Specific objections raised 

Among other things, Dave’s article had referred to recent Collegium proposals to elevate Justices BR Gavai and Surya Kant Rao to the Supreme Court. With respect to these proposals, Dave had observed,

“Justice Gavai is known to be extremely close to Justice Bobde, while Justice Surya Kant is perceived to be a pick of the Chief Justice himself. Reciprocity is writ large.”

With reference to the proposal to elevate Justice Gavai, Dave opined that he had not demonstrated an “independent and fearless” judicial approach on at least two occasions. One concerned the quashing of criminal proceedings pending against Chief Minister of Maharashtra Devendra Fadnavis.

The other related to press interviews given by Justice Gavai along with Justice SB Shukre on the death of Judge Loya case. With regard to the same, Dave has written,

Giving of such an interview was not just unprecedented, but highly improper. Judges do not speak to the press, as the Restatement of Values adopted by the Supreme Court prohibits it. But what is more shocking is that two days later, the inquiry report by the Commissioner of Intelligence, which was made public, virtually recorded what these two judges had told the press, although in the words of other witnesses.”

In response, however, the BCI statement argues that Dave himself appeared to be in favour of judges interacting with the press at the time of the press conference of January 2018. As pointed out in the BCI’s statement,

“…we cannot forget that it was Mr Dushyan Dave himself with his 2-3 other lawyer-friends, who had vehemently supported the holding press interview by the Hon’ble Judges in January, 2018. Now, when it is the turn of Justice Gavai, we fail to understand as to why Mr. Dave has become critic. The interview of Mr Justice Gavai was confined to Legal issues only, there is nothing wrong or beyond jurisdiction, which could be criticised by anyone. 

Coming out in defence of the Collegium’s decision to elevate Justice Gavai and Surya Kant Rao, the BCI has stated,

Imputing baseless intentions in the matter of elevation to the highest judicial institution is unfortunate. Justice Gavai and Justice Surya Kant are very upright Judges and are known for there integrity, efficiency and merit. They would prove assets for the Supreme Court.”

An objection is also raised to Dave’s observations regarding the proposed elevation of Advocate Vishal Mishra. In Dave’s article, it is stated,

“… Vishal Mishra, a young advocate, who in a normal situation would never have been recommended, being below the age bar adopted by the Collegium itself. He may be an extraordinary lawyer, but he also happens to be the nephew of Justice Arun Mishra, the fourth senior most judge of the Supreme Court.”

Answering this query, the BCI states that it has consulted with Senior members of the Bar as well as the legal fraternity from Madhya Pradesh to evaluate Dave’s concerns. It goes on to state that all the persons so consulted were unanimous in their view that Advocate Mishra was a “very knowledgeable and efficient lawyer.” The statement further notes,

He [Advocate Mishra] has a very lucrative practice and strictly maintains professional ethics. The independent opinion of Bar about hims is that he is a lawyer or extraordinary merit. 

Now, by sheer chance if such a brilliant lawyer happens to be the nephew of a Judge, he cannot be compromised only because of relationship and on the basis of baseless/frivolous comments of someone (who it appears, has developed a habit to criticise and comment on each and every decision of the collegiums). [sic]”

Vast Majority of Legal Fraternity supports the institution

As it concludes the statement, the BCI opines that the judicial institution remains safe since,

Fortunately, the vast majority of the lawyers of the country, as well as 99 percent Members of the Supreme Court Bar Association, are fully aware of the intention of this small group of lawyers.”

It goes on to declare,

“Almost 19 lakhs lawyers of the country, as well as 130 crores of the citizens, are there to protect the Institution of Judiciary. Therefore, we are sure that neither the Judges of Supreme Court and High Courts not the Members of the Collegium… would every be pressurised to act upon the dictates of such people having vested interests.” 

The BCI has also urged that the public discourage those who are weakening the judiciary for self-gain, stating,

We, therefore, request and appeal to the Members of the Bar as well as citizen of our country to discourage the people who are trying to weaken the highest Institution and judiciary for their self-gains. Their game is sinister. They try to be always in lime light through certain media and as stated above, to lay undue pressure upon the Judges of Supreme Court and the High Courts”. 

On a parting note, the BCI points that it has been appealing to that the Collegium consult with the Bar before making recommendations in order to avoid criticisms. Further, it is also informed that the instant BCI statement was released after consultation with concerned Bars on the Collegium recommendations in focus.

Read the Full BCI statement dated May 16, 2019:

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