Dushyant Dave
Dushyant Dave
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[COVID-19 Pandemic]: Judges have singularly failed in holding the government accountable since the last 8 weeks: Dushyant Dave

Shruti Mahajan

Senior Advocate at the Supreme Court, Dushyant Dave, on Saturday said that in India now, nobody in the government is answerable to anyone and the Judges who have the duty to hold the government accountable have failed in this duty in the last eight weeks.

The Judges chose to sit silently in their ivory towers when great misery befell on the citizens of India after a nation-wide lockdown was imposed at a mere four hour notice, Dave said with despair, while speaking on the subject of "Role of Judiciary in a pandemic" organized by the All India Lawyers Union.

Seemingly perturbed by the Supreme Court's recent observations on migrants workers where the Judges said, "How can we stop them from walking," during one of the hearings, Dave said that the Judges have a "pious Constitutional duty" to save every citizen of India.

The Judiciary cannot turn a blind eye to the miseries of "hundreds of thousands of citizens," Dave said.

"This is where one must understand that the Constitution framers really wanted that the Judiciary must supervise and control both, the executive's actions and inactions."
Dave added.

The Constitution requires the Judges to discharge their duties without fear or favour and Dave observed. He remarked that it is incomprehensible as to what is preventing the Judges from really acting at a time like this.

Recalling Dr. BR Ambedkar's thoughts on the right to seek remedy from Court, Dave recalled that the even Ambedkar said that there can be no rights without a remedy and, therefore, the soul of the Constitution was Article 32 which gives the guaranteed right to move the Supreme Court.

"But the Judges, I am sorry to say, have either never read the Constitution or if they have read the Constitution, they are not willing to follow the Constitution. There is no other conclusion one can draw in the given circumstances."
Dave said.

Dave added that during this pandemic, it is not just the migrant crisis but every other issue arising from the pandemic is raising several concerns. India being one of the poorest countries, having the second-highest population in the world, and having poor healthcare infrastructure, should have seen better preparedness, Dave opined.

He said that the government should have started taking steps from January itself when China declared COVID-19 a pandemic instead of waiting till such a declaration to come from WHO. In all this, however, the judiciary could have taken up the issues concerning the public as a PIL case, but the Judicary failed.

"The judiciary can intervene in the garb of public interest litigation in all kinds of matters but when it came to the crunch, the judiciary has failed. This is the same judiciary that failed us during Emergency in the famous or the rather infamous judgment of ADM Jabalpur in which the Supreme Court said that the Fundamental rights of the citizens can be suspended during emergency."
Dushyant Dave said.

We are not under an emergency and the fundamental rights are not suspended, and yet the "Supreme Court has suspended the effective enforcement of those fundamental rights," Dave went on to remark, while recalling the Supreme Court's observation on walking migrant workers

The role of the Judiciary is carved out in the Constitution in black and white and Judges know their footing, but the Judiciary appears to be "singularly and systematically compromised" Dave said, while wondering as to what might influence the Judges in abdicating their responsibility amid a pandemic.

"If names of Supreme Court judges are found in suicide notes of Chief Ministers and former Chief Justice of India is accused of sexual harassment then the executive is bound to take advantage of such a situation. And this is why it is important to have outstanding Judges within the Judiciary... but even these outsanding Judges who are in majority perhaps are remaining silent (during the pandemic)."
Dushyant Dave

Dave also opined that the Judges, in their individual capacity, should take up matters suo moto in these times, and challenge the decision of the Chief Justice of Inda as the master of the roster, to say that they are willing to act on the issues. The Judges should let the citizens know that they feel for the citizenry and that they are willing to stand up for the people of this country, the Senior lawyer added.

"Various High Courts in the country that have many outstanding Judges are remaining silent and not passing orders with the apprehension that any order passed may be overturned by the Supreme Court the next day at the request of the government", Dave said.

When the Supreme Court has not passed orders to hold the executive answerable, the High Courts are bound to take a cue, the Senior Advocate remarked, ruing that this is leading to a "systematic collapse of the judicial powers."

Dave went on to opine that hundred years from now, when the Indian judiciary will be remembered, all the stakeholders will be condemned to let India become a democracy where the rights of the people are not protected but the people in power are. Therefore, the lawyers must organize and remind the Judges that people are not thinking well of the Judiciary, Dave says.

"Pandemic really gave judiciary a chance to win over the hearts of the people by taking proactive steps in the time of crisis, and earn back the respect it once commanded...If the judiciary's conscience is dead it is the duty of the lawyers to stir up that conscience. We as lawyers need to galvanize the judiciary into action."
Dushant Dave

Further speaking on the functioning of the Courts during the pandemic, Dave said that the Court system is not very e-friendly. Efforts have been made by the Bar to help in the technological revolution of the system but there has been no dialogue between the Supreme Court Bar and the Supreme Court Bench in this regard. During the pandemic, the Court has the opportunity prove that it can rise to the occasion and is not helpless, he observed.

Dave said that the crisis is a time for every segment of the society, including the Judiciary to come up with crucial solutions for critical problems and this is the time for the Judiciary to galvanize itself.

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