Dushyant Dave opined that the Judges chose to sit silently in their ivory towers; when great misery befell on the citizens of India; after the government announced a nation-wide lockdown at only a four-hour notice. Dave made the statements, in the lecture, ‘Role of Judiciary in a pandemic’; the All India Lawyers Union organized on May 23. Supreme Court Bar Association President, Dushyant Dave said that India’s highest judiciary failed to defend the fundamental rights of citizens; during the Covid-19 pandemic.
Dave was particularly critical and said that, in India now, nobody in the government is answerable to anyone; the Judges, who have the duty to hold the government accountable, have failed in this duty in the last eight weeks.
Dave: Supreme Court Ignoring The Plight Of People
He criticized one of the Supreme Court’s recent observations on migrants’ workers; where the Judges said, “How can we stop them from walking? “
“If the judges had seen their grandchild walking on the road; and suddenly see a car rushing from the other side, would they not have tried to save the child? Every citizen of India is a grandchild of the Supreme Court of India;” Dave responded. The Judges have a “pious Constitutional duty” to save every citizen of India. The Judiciary cannot ignore the miseries of “hundreds of thousands of citizens,” he said.
Supreme Court’s Actions Violative of the Constitution
Dave said that the Constitution framers wanted that the Judiciary must supervise and control both, the executive’s actions and inactions. The Constitution requires the Judges to perform their duties without fear or favour; and it is incomprehensible as to what is preventing the Judges from really acting at a time like this. There can be no rights without a remedy; and Article 32 of the Constitution enables a citizen to directly move the SC for enforcement of fundamental rights; Dr. B R Ambedkar rightly described it as the ‘soul of the Constitution.’
“But the Judges, I am sorry to say, have either never read the Constitution; or if they have read the Constitution, they are not willing to follow the Constitution. There is no other conclusion one can draw in the given circumstances,” Dave commented.
Dushyant contended that in this pandemic, not only the migrant crisis; but every other issue arising from the pandemic is raising worries. India is one of the poorest countries, having the second-highest population in the world; and having poor healthcare infrastructure, better preparedness should have been there. The government should have started taking steps from January itself; when China declared COVID-19 a pandemic instead of waiting until such a declaration to come from WHO.
History Repeats Itself?
“The judiciary intervenes in all kinds of matters in the name of Public Interest Litigation. But, in this crisis, the judiciary has failed. This is the same judiciary that failed us during Emergency in the famous or the rather infamous judgment of ADM Jabalpur in which the Supreme Court said that the Fundamental rights of the citizens can be suspended during emergency.“
“The same SC let down the country at the time of announcement of demonetization. The entire exercise proved to be a disaster. It did not achieve results except causing sufferings to millions of people. It did not wipe out black money. Government has not come out with figures,” Dave asserted.
Although we are not under an emergency and the fundamental rights are not suspended; yet the Supreme Court has suspended the effective enforcement of those fundamental rights.
A Compromised Judiciary
The role of the Judiciary is carved out in the Constitution in black and white. Judges know their footing, but the Judiciary appears to be “singularly and systematically compromised.” Dave Claimed.
“If names of Supreme Court judges are found in suicide notes of Chief Ministers and former Chief Justice of India is accused of sexual harassment then the executive is bound to take advantage of such a situation. And this is why it is important to have outstanding Judges within the Judiciary… but even these outstanding Judges who are in majority perhaps are remaining silent (during the pandemic).”
The Judges, in their individual capacity, should take up matters suo moto in these times; and challenge the decision of the Chief Justice of India as ‘the master of the roster’; to show that they are willing to act on the issues. Judges should let the citizens know that they feel for the citizens. That they are willing to stand up for the people of this country.
“Various High Courts in the country that have many outstanding Judges are remaining silent; and not passing orders with the apprehension; that the Supreme Court can overturn any order passed the next day at the request of the government,” he further added. Also, when the Supreme Court has not passed orders to hold the executive answerable, the High Courts are bound to follow. He remarked that this is leading to a “systematic collapse of the judicial powers.“
Judiciary Missed The Chance To Improve Its Image
Dave opined that hundred years from now, the Indian judiciary will be remembered; as where the rights of the people are not protected but the people in power are. Therefore, the lawyers must remind the Judges that people are not thinking well of the Judiciary.
“Pandemic really gave judiciary a chance to win over the hearts of the people; by taking proactive steps in the time of crisis, and earn back the respect it once commanded…If the judiciary’s conscience is dead it is the duty of the lawyers to stir up that conscience. We as lawyers need to galvanize the judiciary into action,” Dave said.
Functioning Of E-Courts
Further speaking on the functioning of the Courts during the pandemic; Dave said that the Court system is not very e-friendly. That there is a need for restoring the regular functioning of the courts. The Courts should not just hear matters of public importance, but also should immediately start hearing ordinary cases of individuals.
The Bar is also making efforts to help in the technological revolution of the system; but there has been no discussion regarding this between the Supreme Court Bar and the Supreme Court. Dave said that these are testing times for all of the society including the Judiciary; to come up with crucial solutions for critical problems. That it is the right time for the Judiciary to awaken from the slumber.