Contempt Action Against Bhushan Must Not Deter Citizens From Showing Judges The Mirror : Sr Adv Dushyant Dave

Senior Advocate Dushyant Dave on Wednesday spoke on a Webinar organised by Manthan India on the Topic "The Constitution, Rule of Law & Governance during Covid19".

Dave began the session by pointing out that he will dive into some unpleasant truths which might not necessarily be comfortable for everyone to hear.

Quoting Atifefe Jahjaga, he said; "Democracy must be built through open societies that share information. When there is information, there is enlightenment. When there is debate, there are solutions. When there is no sharing of power, no rule of law, no accountability, there is abuse, corruption, subjugation and indignation", Dave went on to draw corollaries in the present situation that the country is under.

"That's really the state where we may be today. India is reeling under lack of information. The nation wants to debate Sushant Singh Rajut's death - we are told about the fighter  Rafale jets & we are inundated with information about these things" he said.

He pointed out that we debated Nizamuddin Markaz for weeks, resulting in the criminalisation of sickness, resulting in FIRs and arrests of foreigners. "We demonised an entire community of about 150 million when the covid19 pandemic struck India. Is that not "Anti-national"? Bombay HC has spoken about role of media in spreading this hatred" Dave said.

While highlighting the importance of debate and discourse, Dave said that participatory democracy is something that is extremely important as it effectuates "Constitutional Morality"

Dave: "Democracy in India is only top dressing of soil, which essentially is undemocratic. Strength of constitution lies in determination of each citizen to defend it"

Stating that accountability is of extreme significance, Dave cited the ADM Jabalpur case and said that it was one of the most disgraceful judgments that our country has ever seen and the only Judge who stood tall and dissented was Justice Khanna.

"Some of the finest legal minds did not agree with him - including Justice Bhagwati & Justice Chandrachud. Before their death, they both apologised to the nation for the judgment. When we needed the Judges during an emergency, they were not there. One of the most disgraceful judgment in history. It was only Justice Khanna who stood tall" said Dave.

Dave then pointed out the laxity of the Government in implementing the Disaster Management Act, 2005 in letter & spirit even during the time of crisis such as the pandemic, for which the Government is thoroughly ill-prepared. 

Dave: "No comprehensive National Plan to tackle Covid19 by Government even after months of the biological disaster. "𝘼𝙙-𝙝𝙤𝙘𝙞𝙨𝙢" being adopted. More than 5000 orders enunciated by Government plus 1000's more by states. No one knows what their rights are" 

He stated that not only the government but also the citizens are ill-equipped and ill-prepared to debate on the issues that our country is currently going through. "Today, to meet this challenge, Government is thoroughly ill-prepared and more than that the nation is ill-prepared to even debate it. Not one opposition leader has raised questions of National Plan not being effectuated. We are doing a Great disservice to our Country by not asking the government why they are not following the law" he said.

The Senior Advocate then went on to elaborate on how the lockdown had caused irreversible damage to our economy and questioned what purpose it had really served the country. He said that while some countries did a remarkable job with imposed lockdowns such as New Zealand simply because they closed their international borders from February 1st onwards, our country was welcoming Trump & Gujarati businessmen in early March.

Further to this, Dave criticised certain executive decisions taken by the BJP-led Government such as those of Demonetisation and added that the Supreme Court has failed in its duty to uphold the concept of "checks and balances"

Dave then went on to state that the Supreme Court had failed to protect the rights of citizens during these trying times. "Failed to wipe tears of citizens. Liberty of thought is seriously undermined" said Dave.

He said that the lack of information in the country had perpetuated a culture of misinformation.

Dave: No one knows real situation of India today - personal well-being, economic or China border issues, simply because we have not been given information about it. Nation is entitled to know & all Media Channels that say "Nation Wants to Know" should be asking & not SSR case .

He ended his talk with Rabindranath Tagore's quote, adding that he must be wondering from Heavan what happened to the poem he wrote:

Dave: Gurudev Tagore must be wondering from Heaven what happened to that poem i wrote - "Where the mind is without fear and the head is held high, In to that heaven of freedom, my father, LET MY COUNTRY AWAKE!"

Next, Dave answered some questions. On the issue of lack of alacrity of judges in entertaining habeas corpus petitions, he said that the only way to deal with that is to respectfully and strong criticise the judiciary. "Delays in taking up Habeas Corpus is unforgivable"

On the issue of whether the primary role of the top court was to protect individual rights of citizens, Dave said that it is the obligation of the Supreme Court to intervene in Article 32 petitions.

Dave: Article 32 is right to move SC for enforcement of Fundamental Rights. Today when Habeas Corpus is filed in SC, they say go to HC. Obligation on the SC to intervene.

On the issue of whether the 4th estate is still deserving of being a self-governed body, Dave said that a large section of the media was acting irresponsibly. "Tablighi Jamaat incident is a major case in point. Came for teachings & people started calling them "Human Bombs". Regulations Important."

Dave then briefly discussed the Public Safety Act and said that both liberty and national security must be balances. "We must have a stronghold on terrorism but robust mechanisms in place required to keep in check. We can't demonise an entire community."

On the issue of ensuring how judges act in an impartial manner in the future, Dave answered that legislation which prohibits judges from accepting everything, including arbitrations must be brought forth "We must give them salaries throughout their lives. Judges get temped. Have seen myriad of times" he said. 

He concluded by saying that Prashant Bhushan's contempt case must not deter citizens from criticising the judiciary. 

Dave: I love my judiciary and I love my judges but that doesn't mean I will not criticise them. Judges live in ivory towers, they are not open to ideas. They don't want to hear criticism, they just don't want to see the mirror. Our duty as citizens to show mirrors. Great responsibility on shoulders of Supreme Court & pray it comes back into its spirit. No one saying set aside everything that Government does, but it must be put to test. SC as an institution needs to be really be performing its Constitutional duty. Check & Balances imperative.