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Dave was speaking during a webinar organised by the Manthan Foundation on the theme 'The Constitution, Rule of Law & Governance during COVID-19'.
A discussion hosted by the Manthan Foundation on Wednesday saw Senior Advocate Dushyant Dave make strong observations on the need to ensure that Constitutional checks and balances are maintained, particularly amid the COVID-19 pandemic.
Watch the full session here:
As far as the Judiciary is concerned, Dave opined that the Supreme Court has been extraordinarily liberal in deciding matters concerning the executive since 2014. During his talk, he cited the example of demonetisation.
The Rafale case also found mention, with Dave remarking,
"The way Rafale matter was handled by then Chief Justice Gogoi was extraordinarily disturbing. The sealed covered packages, abrupt orders, abrupt hearings - totally unsatisfactory."
In general, he stated,
Dave also took critical note over the way in which petitions challenging the abrogation of Article 370 of Constitution and related pleas challenging preventive detention were dealt with.
"Former CJI Gogoi virtually said, 'Let us given executive some time'", Dave said. Registering crticism over this approach, Dave commented,
He went on to note,
Speaking on the theme of the law concerning contempt of court, Dave remarked,
He went on to assert that the respectful criticism of the judiciary is vital to improving the system.
He added that the reason why the judicial system is not improving was because judges were not inclined to be shown the mirror. Dave said,
"The reason why it is not improving is because, with the greatest respect to the judges, they live in ivory towers.... They have no idea that what they are doing is not good for the institution. They just don't want to see the mirror. It is our duty as citizens should show them the mirror."
Before concluding his thoughts on the topic, Dave also opined,
"I don't think that a singular judgment like in the Prashant Bhushan case should deter the citizens from showing that mirror to the judges. But it must be done with respect. It must not be personalised."
Dave recalled the words of former Supreme Court judge, Justice HR Khanna's words in the ADM Jabalpur judgment that the "rule of law is the antithesis of arbitrariness". He asserted that the rule of law is not being respected, particularly amid the COVID-19 pandemic.
When the ADM Jabalpur verdict was pronounced, Dave recalled, the majority of the judges did not agree with Justice Khanna, ruling instead that fundamental rights need not be enforced during the Emergency.
"Both Justice Chandrachud and Justice Bhagawati, before their deaths, apologised to the nation for the judgment", Dave further recounted.
However, he observed,
"We are not at an Emergency at the present, as it is known in the Constitution. Yet we saw from March 23, for months on, how millions of Indians who happened to be migrant workers, keeping the wheels of the economy moving, were deprived of their basic human rights and fundamental rights, under the Constitution. Six hours' notice for lockdown proved to be a disaster for them and the nation... They suffered pain and humiliation... We deprived them of their right to live with dignity."
He went on to say,
He went on to emphasise that there is a need to ensure participatory democracy, in the absence of which there would be no rule of law or accountability.
"There is no denying that the Prime Minster of India means well, but the absolute discretion with him does not augur well for our democracy. Demonetisation and lockdown are two examples which remind us of the limitations of even the most popular leader", Dave said.
On this aspect, Dave recalled the observation by Dr BR Ambedkar that "Bhakti is not good in politics", as it is a "sure path to degradation and ultimate dictatorship.
On the manner in which the COVID-19 lockdown was imposed, Dave said,
As his talk came to a close, Dave highlighted,
He opined further,
Dave went on to emphasise that the right to move the Supreme Court under Article 32 of the Constitution for the enforcement of fundametnal rights is itself a fundamental right. However, he opined,
Dave also expressed concerns over the PM CARES COVID-19 fund, asserting that this fund ought to be subject to public scrutiny, while criticisng its treatment as a private fund trust which is managed by government ministers and which is not subject to a CAG audit.
"One of the Parliamentary Committees (Public Accounts Committee) wanted to discuss the PM CARES fund, but the Committee Chairman (of the ruling party) said flatly that we will not even discuss it", Dave remarked.
He went on to opine that,
"However responsible, honest, or popular the PM may be, he is accountable to us, the citizens. He must become transparent. He must override his advisors who have advised him to create this type of a fund."
Responding to a question on whether it is time that the media is given a codified status, rather than leaving it to be self-regulated, Dave made critical observations over the media reporting on the Nizammudin Markaz issue.
"There is no doubt that the fourth estate - the media - in this country has behaved extremely irresponsibly", Dave said, adding that the media coverage over the matter led to the criminalisation of a sickness.
He went on to opine that the time has come for regulation of the media, particularly given that the media is using public airwaves.
Dave also emphasised that there should be a legislation introduced to prohibit judges from accepting any post-retirement job, including post-retirement arbitration engagements.
He commented that it is important to ensure that judges are not exposed to temptation, adding that ideally, judges should be given a salary for life, rather than pension after retirement.