"We all respect the SC, but its failures in recent times have been abject as it was in ADM Jabalpur", Senior Advocate Dushyant Dave
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"We all respect the SC, but its failures in recent times have been abject as it was in ADM Jabalpur", Senior Advocate Dushyant Dave

Dave was speaking during a webinar organised by the Manthan Foundation on the theme 'The Constitution, Rule of Law & Governance during COVID-19'.

Meera Emmanuel

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.

"Parliament has not been able to debate much, less challenge the Government for its decision (on COVID-19 management) taken since March 23 and imposed on 130 crore people. Judiciary has virtually, if not completely, refused to intervene on the specious ground that in policy matters, it will not intervene. The Executive has been left free to take any decision without any limitation, contrary to the spirit of the Constitution", Dave said.

Watch the full session here:

Court has been extraordinarily liberal to the Executive since 2014

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.

"What is sad is, when demonetisation was challenged before the Supreme Court, it refused to intervene. But more than that, it has not heard the matter till today. This is the state of affairs in the country, where every Constitutional body is virtually ceding its turf to the Executive, and mainly to the Honourable Prime Minister. He has a towering personality."

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,

"The Court has been extraordinarily liberal to the Executive since 2014. Not that Congress was free from corruption charges, but at least the Supreme Court gave important decisions in 2G and Coalgate cases during Congress time and set aside those licenses which were given because the Supreme Court found that they were given on collateral considerations. Since 2014, not a single decision."
Dushyant Dave

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,

"It is impossible that the judiciary would ever make such a statement and defer preventive detention petitions. The law is that if a Habeas Corpus petition is brought before a Court, the Court will put aside other matters and hear the Habeas Corpus petition first… because liberty of a citizen is extremely important and the Court cannot defer that to the Executive judgment or the Executive discretion - which it did. It is a sad commentary on the functioning of the Supreme Court that this is happening again and again."

He went on to note,

"We all respect the Supreme Court … It is one of the most revered institutions in the country, but its failures in recent times has been abject as it was in ADM Jabalpur. These failures have caused immense pain and suffering to the citizens of this country."
Dushyant Dave

Judges have to earn respect

Speaking on the theme of the law concerning contempt of court, Dave remarked,

"The judges must realise, which was said by Chief Justice Mukherjee in 1953, that judges have to earn respect. They cannot demand respect. What they are doing by enforcing contempt law is demanding respect."
Dushyant Dave

He went on to assert that the respectful criticism of the judiciary is vital to improving the system.

"I love my judiciary, I love my judges. But that does not stop me from criticising them time and again because I want my system to improve. And it can be much better."

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."

Rule of law is the antithesis of arbitrariness

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,

"What is important is, at a time of Emergency, when we needed the judges, when we needed our Supreme Court, it failed us. It was only Justice Khanna who stood tall."
Dushyant Dave

He added,

"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,

"Did the government not envision this problem before declaring a lockdown? What was the government thinking? We will never know because we have no information as to how this infamous decision to declare the lockdown was taken. We cannot debate it, as debates on such issues are unwelcome in this country."
Dushyant Dave

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,

"Can a poor nation of over 130 crore people with large-scale poverty afford these kinds of ill-thought, ill-conceived and ill-executed executive actions that are completely unchecked by Parliament and Judiciary altogether?"
Dushyant Dave

There is a great responsibility on the shoulders of the Supreme Court

As his talk came to a close, Dave highlighted,

"There is a great responsibility on the shoulders of the Supreme Court. I genuinely hope and pray that the Supreme Court comes back to its real spirit...No one says to set aside everything the government does. But you must test it on the touchstone of the Constitutional spirit."

He opined further,

"We can only hold Judiciary accountable by criticising it as respectfully as well can and as strongly as we can. Delays in hearing habeas corpus petitions is absolutely unforgivable."
Dushyant Dave

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,

"Today, Supreme Court has forgotten this completely. When Habeas Corpus petitions are filed in Supreme Court today, it says go to the High Court. It is unheard of, it is unacceptable and it is deeply saddening. It has a Constitutional obligation, it is not just a duty."

On the PM CARES Fund, Media regulation and Post-retirement jobs for Judges

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.

".... we demonised the entire community of 150 million citizens belonging to this country. Was this not anti-national - to create hatred amongst us? Yet no action has been taken against the perpetrators of false and vicious campaigns."
Dushyant Dave

He added,

"It is an extraordinary situation where the media - a section of it - can get away saying anything and everything, inflame passions, create a discord between the communities. It is very easy to inflame passions between the majority and minority community."

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.

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