If Govt Is Interfering, Judiciary Has To Strike Back : Senior Advocate Dushyant Dave

Senior Advocate Dushyant Dave, speaking at a seminar organized by Campaign for Judicial Accountability and Reforms (CJAR), raised concerns about increasing executive interferences in judicial appointments and urged the judiciary to assert its independence.

"If the government is interfering, there is every responsibility on the part of the judiciary to strike back.Judiciary cannot say that there is an executive interference and hence we cannot do anything. Judiciary must stand up. That will has to come up within"

The Senior Advocate commenced his address by giving the example of protests in Israel against attacks on judiciary and drawing a contrast with the Indian situation.

"The Prime Minister of Israel, with his extremely right wing government, is wanting to pass a law in his parliament to say that the Parliament will have the last word and have the right to override any judgment of the Supreme Court, and that the Government alone would decide who becomes judges. Millions in Israel are standing up against it. Some of the best tech companies are threatening that we will leave Israel. Civil society members, judges, lawyers, politicians, workers- everyone is up in arms. Cities of Israel have seen large scale demonstrations. To cap it all, the President of Israel told his cabinet and his PM that you are heading for a constitutional and social disaster."

He also mentioned that in Pakistan, the entire bar had fought against the attempts made during the dictatorship of General Musharaff to control the judiciary.

Turning to the situation in India, Mr. Dave criticised the lack of interest in the independence of the judiciary among the bar and the general public.  

"The bar- we're not interested in the independence of judiciary. We don't give a damn so long as we're able to get our briefs go about our business...It is impossible in this country for this to happen".

Dave lamented that the executive interference in Judiciary is "large scale today".

While he acknowledged that there are some exceptional judges, he stated that there are also a large number of judges who are highly questionable.

"I mean it with greatest respect to Chief Justice Lalit, Justice Lokur, Justice Gupta - whom I regard as the finest judges that I have seen in my career of 44 years. But they're exceptions. They're a dying species. We have a large number of judges who are highly questionable. They either lack expertise, knowledge, most of all the commitment."

He said that the good judges and far and few.

Dave pointed out that activists and opposition leaders were being arrested and denied bail on flimsy grounds, and even stand-up comedians were being denied bail for making funny comments about the Prime Minister.  

"Across the country, opposition leaders are being arrested, sometimes on flimsy grounds, sometimes on purely bailable offences but aren't getting bail from lower courts, High Courts and many a times from Supreme Court. This is very very alarming. This shows that there is a large scale interference in judicial appointments. Yes, there is a collegium system, yes collegium deliberates very seriously. But I must say, I started in 1978 in Gujarat. There were 14 judges in Gujarat High Court then and I dare say, each one was better than the other, in terms of competence, integrity, intellectual level, hardwork, courtesy. Today, as it happened during Mrs Indira Gandhi's times, judiciary is becoming weaker and weaker."

Collegium has failed to pick the best judges

Senior Advocate Dave criticized the collegium system for failing to pick the best judges from those available. In this context, he said–

"The Collegium system is in place. The judgement of the Supreme Court is law of land. Yet, there are judges like Akhil Kureshi, Justice Jayant Patel, Justice Muralidhar and many such examples including (Senior Advocate Aditya) Sondhi, who are suffering beyond repair. And who is the loser? The nation, the public interest."

He called for the Supreme Court to start exercising its power of contempt to ensure that its judgments on judicial appointments are fully complied with by the government.

"Not once has the Supreme Court exercised the power of contempt since 1993(to enforce directions on judicial appointments). It shows that the Supreme Court is afraid of taking the executive head on. Unless Supreme Court takes executive head on, this interference will continue. To my mind, Chief Justice Muralidhar's place is only in the Supreme Court. He is one of the most outstanding judges in every sense of how a judge should be. There are exceptional judges in collegium but if you look at the judgement of 1993, there is only one thing which strikes me in that judgement - the judges said "we must pick the best from those available". Have they done that? Not at all."

At this juncture, without taking any names, Senior Advocate remarked that he had seen some of his colleagues, who are unworthy of being appointed as judges, getting elevated.

"I have seen some of my colleagues at the bar in Supreme Court being appointed in last 10-15 years, especially last 7-8 years, who should not ever have been considered for judgeship across the board. The kind of judgements they pass, the kind of comments they make in court makes us really wonder how the collegium system is failing in not considering this. A recently appointed judge to the Supreme Court has not written a single good judgement in his career as a judge"

Bar does not want to speak

Dave lamented that the bar is not voicing its protest.

"Nobody wants to speak. The bar is silent. And the collegium just goes about its work as if everything is hunky-dory"

Senior Advocate Dave called for the judiciary to be more willing to question the government and its policies, and for the judiciary to start issuing contempt notices against those who interfere with its independence. He expressed concern about the lack of action on the part of the judiciary in the face of instances of injustice against minorities, and noted that judges are unable to stop it. He said–

"There is no doubt that today like Mrs Gandhi, Prime Minister Modi is an extremely powerful leader. Naturally, every powerful leader would want to perpetuate his power. He doesn't want judiciary asking him any questions about how his policies are, how his government's actions are. But the judiciary's role is to question them. Look at the kind of comments the Law Minister, Vice President have been making about collegium."

Judiciary has to strike back

Senior Advocate Dave said–

"This country has gone into some kind of inertia, some kind of coma, where we are not interested in a strong and independent judiciary. The Supreme Court Bar Association has failed to pass any resolution condemning what Law Minister is saying. It's highly improper. What law minister is saying about matters taken in Supreme Court, it's clearly obstruction of justice to my mind. Judiciary after the armed forces in the most loved institution in the country as per me.

But if government is interfering, there is every responsibility on the part of the judiciary to strike back. Does the judiciary have the will to strike back? In my view no. Unless judiciary has the will to strike back, start issuing contempt notices, and call up Secretary of Justice Department, things will not start happening. But it is not happening. There is no will to take the government head on".

Dave said that the interference by the government is causing a serious effect on the rule of law.

"Look at the kind of challenges which minority communities are facing today. Now all kinds of instances are happening against minority communities. In the name of alleged forced conversions, large number of Muslims and Christians are getting arrested. Judges are unable to stop it. They won't get bail for months and years on...".

Dave said that judges of a particular ideology have been appointed across the High Courts in the country.

"We have lost the plot. I am a pessimist. I don't think we can overcome the situation, especially with the kind of appointments that have been made in last 7-8 years across the High Courts. The kind of ideology that has set in to High Courts is extremely dangerous. We need only one ideology in our judiciary- Constitution of India. Nothing else. That, in my respectful view, is singularly absent. So unless the judiciary buckles up, unless the judiciary tells the government that we are the final arbiter of constitution, things won't change. I will request the judiciary to rise to the occasion and tell the government that we are the final arbiter".

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