Why BCI’s Show Cause To Dushyant Dave Should Be Immediately Recalled?

First they came for the Socialists, and I did not speak out—
Because I was not a Socialist.

Then they came for the Trade Unionists, and I did not speak out—
Because I was not a Trade Unionist.

Then they came for the Jews, and I did not speak out—
Because I was not a Jew.

Then they came for me—and there was no one left to speak for me.

• Martin Niemöller

"The CJI and other judges are undoubtedly judicial authorities but when they act in their collegiate capacity they do not undertake a judicial function. Transfer of a judge from one High Court to the other is an administrative decision. No such decision is beyond constructive criticism and well within the Fundamental Right of Free Speech and Expression".

Advocates have the dual responsibility of upholding the interests of the client fearlessly while conducting themselves as officers of the court. They are duty bound to adhere to the highest standards of probity and honour. Practicing law, is perhaps therefore considered as the most noble and dignified of all professions. Dushyant Dave,  Senior Advocate and a distinguished member of the Supreme Court bar is known for being fearless and upright. He has always stood for integrity and righteousness. Not only the bar but the bench carries highest levels of regard for him.

Mr. Dave had advocated for elevation of Justice Patel to the Supreme Court or as the Chief Justice of an important High Court in an article dated 16 March, 2017 published in online portal The Wire. He had then written: “Justice Patel, appointed on December 3, 2001, is senior to four of the five recent appointees. For no reason he is not being confirmed as chief justice although the previous collegium had recommended the transfer of the incumbent chief justice out of Karnataka to facilitate the appointment of Justice Patel in his place. More painful is the fact that the collegium has recommended nine judges for appointment as chief justices in nine high courts. Each of them is junior to Justice Patel by periods ranging from two months to four and a half years. Why so?”

His views gained strength when Justice Jayant M. Patel’s resigned earlier this week, allegedly to protest his non-elevation as the Chief Justice of any High Court despite his seniority. The final stroke seems to have been his transfer to Allahabad High Court, where he was to be the third senior-most Judge. The resignation has invited strong reactions from the members of the legal community.

Let us see and evaluate what Mr. Dave said and whether any of his comments were “derogatory”, “reckless”, “gross misconduct”, “baseless”, “attempt to malign the image of judiciary and the institution” as alleged by the BCI and whether the BCI has any evidence  of “personal vendetta against the Chief Justice of India”.

Mr. Dave said –“Collegium has been making thunderous sounds about independence of judiciary. They wrested control of judicial appointments from executive under the garb of freeing the judiciary from political interference, but that is precisely what is happening today.   

It is the darkest day in Indian judiciary. I did not expect much from the Hon’ble Chief Justice since he is compromised because of serious allegations against him in the Kalikho Pul suicide note and the CBI case pending against him. But the four other Collegium members are outstanding, and men of absolute integrity and I have great respect. So I am terribly shocked that this decision has been taken”

By any stretch of imagination whatsoever, the statements made by Mr. Dave are not derogatory. Can’t be termed reckless as this is not the first time this issue has been brought to the forefront. Further, Mr. Dave is not alone to have highlighted what is wrong in non elevation of Justice Patel and why his transfer to Allahabad High Court is incorrect. Further, it is also extremely incorrect to say that by expressing himself, Mr. Dave has committed “gross misconduct”. This is diametrically opposite to the Advocates Act, 1961, Rules made by the BCI itself and a plethora of judgments of the Supreme Court. Regarding apprehension of the BCI that this is attempt to malign image of judiciary and the institution, it is extremely painful and shocking to note that the Bar Council, which is presumed to be custodian of the bar in one sense has misunderstood the entire situation.

The CJI and other judges are undoubtedly judicial authorities but when they act in their collegiate capacity they do not undertake a judicial function. Transfer of a judge from one High Court to the other is an administrative decision. No such decision is beyond constructive criticism and well within the Fundamental Right of Free Speech and Expression. What Mr. Dave has in fact traced is, is that there are serious allegations against the sitting CJI and he did not expect much from him but from other collegiate assessors.

The BCI must recall the Show Cause Notice with immediate effect. These are tragic times where the bar seeks to initiate action against a member of the bar for raising voice against an opaque collegiums. There is absolutely nothing in the statement made by Mr. Dave which can be termed as gross misconduct. I ask the members of the bar to stand up to the Bar Council and tell it that this is incorrect and wrong. It is wisely said – “To remain silent and indifferent is the greatest sin of all.” Hopefully wisdom shall prevail, till then, fingers crossed!