Dushyant Dave
Dushyant Dave

"Judiciary has to be proactive in situations like this", Dushyant Dave on Supreme Court's handling of the migrant crisis

Shruti Mahajan

Senior Advocate and the President of the Supreme Court Bar Association (SCBA) Dushyant Dave said today that it is imperative that the Judiciary plays a proactive role during the ongoing COVID-19 pandemic.

Dave said that the Constitution of India provides for checks and balances for the three pillars of democracy - the Legislature, the Executive, and the Judiciary. These checks and balances, he said, mean that no decision of the government is "unreviewable".

In light of this, it was imperative for the Judiciary to act proactively, Dave said.

"No doubt that the judiciary has to be proactive in situations like this. In our Constitution, there are checks and balances provided for the three pillars... Most important aspect is the breadth of Article 14 which strikes at every form of arbitrariness. Article 14 is omnipresent. Therefore, it is now settled law in administrative law that no decision of the government is unreviewable."
Dusyant Dave

Dave was delivering a talk on the topic Contribution by the Bar in the contemporary scenario, in a webinar hosted by DeBrief. A question was posed to him on the role of the Judiciary during times of crisis, with particular reference to the recent suo motu case in the Supreme Court on the issue of migrant workers.

Dave said that the Prime Minister announced a nationwide lockdown at a mere four hour notice, which led to great misery for people who were not prepared for the same. Asserting that the decisions of the Executive can be reviewed by the Judiciary, Dave said that the Supreme Court should have intervened sooner to say that the imposition of lockdown should have been done with at least a week's notice.

"The Judges should have been mindful. It was important for judges to have realised that the government has foisted upon the people a decision which prima facie appears to be completely arbitrary...the Court should have said 'bring the lockdown, but after a week or ten days'."
Dushyant Dave

Due to the announcement of lockdown at such short notice, Dave said that migrant workers were stranded in the cities they migrated to. At a time when the situation is getting worse, the government is transporting them back to their villages where the health and medical infrastructure is not optimum and the means of livelihood is non-existent, he added.

The Judiciary, Dave said, is expected to be the watchdog of the Executive's actions and inactions and it has failed to fulfil this duty conferred on it by the Constitution in the last eight weeks or so.

The Judiciary should have acted in a "meaningful and positive" manner and had it acted earlier, the result would have been better than the situation we are facing today, Dave said.

He also cited the example of the decision to demonetize Rs 500 and 1000 currency notes, which was also announced at a four hour notice by the Prime Minister back in November 2016. Dave says that from November 2016 till now, the economy has not been able to improve.

"The Prime Minister has the right to take decisions as he thinks fit, but the Judiciary has the duty to immediately examine whether those decisions are rational and based on cogent material and what the consequences would be."
Dushyant Dave

On the topic of contribution of the Bar in these times, Dave said that lawyers have a responsibility to voice the issues of the people, to help them get justice and relief. He opined that lawyers should organize in small groups and extend help to people who are suffering. He said,

"Bar has the greatest opportunity to serve the nation... And if we serve the nation to the best of our effort, lots of issues and challenges faced by the people can be solved."

He also stressed on the importance of the Judiciary being sensitive and acting as the watchdog. However, if for any reason, the Judiciary fails to carry out its responsibility to make the Executive accountable, then it is incumbent upon the Bar to hold a dialogue with the Bench to raise important issues, Dave added.

Stressing on the importance of conversation with the Judiciary, he said that Bar members can pass positive resolutions urging the Court to take stock of specific issues or approach the Court with PILs.

Dave also touched upon the issue of the Bar extending help to its own members. He said that the prevalent crisis has left many members of the Bar in need of financial support.

Members of the Bar must collectively look out for each other, the SCBA President said, urging successful lawyers to extend financial support to those in need. Dave cited the example of SCBA's loan and grant schemes floated to help needy lawyers amid the lockdown.

The Senior Advocate also highlighted the need for resumption of court functioning so that access to justice is not brought to a standstill. He said that while the restricted functioning in the face of a pandemic was an unavoidable and much-needed step, now the time has come to gradually resume functioning of courts in an effective manner.

Bar and Bench - Indian Legal news