Judiciary responsible for India turning into authoritarian state, says senior advocate Dushyant Dave

10/05/2024

New Delhi: The judiciary is “singularly responsible” for the country turning into an authoritarian state, senior advocate Dushyant Dave said in an exclusive interview with ThePrint.

In the conversation Thursday, Dave spoke about a wide range of issues — from the legal targeting of Opposition leaders to judges taking up post-retirement assignments, and the assignment of politically sensitive cases to certain benches in the Supreme Court.

With his usual candor, Dave said that justice was absent in many politically sensitive cases in the Supreme Court and high courts across the country.

“The critics are not being protected, standup comedians are not being protected…minority members are not being protected,” he asserted, adding, “Today, we are really turning ourselves into an authoritarian state and I would say the judiciary is singularly responsible for that.”

Dave claimed that Chief Justice of India (CJI) D.Y. Chandrachud has “not lived up to the expectations…of the Constitution”. He asserted that it was expected of the CJI to transform the judiciary into a justice-oriented institution.

However, he claimed, “while he’s having time to go and give lectures at Harvard, Oxford and other institutions, he doesn’t have time to go to the remotest courts of the country and see the condition, see how people are suffering because they are not getting justice.

Dave also blamed the Supreme Court for the failure of the Election Commission of India (ECI) to act against violations of the Model Code of Conduct (MCC).

“Election Commission’s failure is singularly attributable to the Supreme Court. The government will always want to weaken the institution — every ruling party, be it the Congress or the BJP (Bharatiya Janata Party), who wants strong constitutional bodies? But it is the judges who have to step in,” he asserted.

As for what citizens can do if the ECI fails to act on violations of the MCC, Dave was not very hopeful.

“We, the people of India are left at the mercy of the powers that be — be it executive, the judiciary, or the legislature. We are helpless. There’s nothing we can do,” he said, pointing to “clear-cut violations” of Section 123 of the Representation of People Act, 1951.

The provision declares it a “corrupt practice” if a candidate appeals to vote on the grounds of religion, race, caste, community, or language. A candidate can be disqualified on the grounds of “corrupt practices” under the law.

‘Unbecoming of a PM’

In the interview, Dave launched an attack on the functioning of the ECI. He said that the ECI was “proving to the nation openly that it is a failed institution every day, be it (being) unable to stop the kind of statements that the Prime Minister has repeatedly made.”

He pointed out that ECI did not issue notice to PM Narendra Modi, instead issued notices to the BJP and the Congress, alleging breaches by their star campaigners, PM Modi and Congress leader Rahul Gandhi, respectively.

“The Election Commission doesn’t even have the courage to issue notice to him (Modi)…it doesn’t even use his name as if his name is such a sacrilege that you can’t mention it,” said the senior advocate.

Dave also highlighted the narrative being built during the elections, pointing to the various statements made by PM Modi during campaigning. Among other things, he referred to Modi’s statement that Pakistan was desperate to make ‘shehzada‘ the Prime Minister, taking a dig at Rahul Gandhi, and his ‘mangalsutra’ remark.

Such statements, Dave said, “are really unbecoming of the Prime Minister”.

In March last year, a five-judge Constitution Bench had modified the process for appointing members of the ECI. The court had held that a committee comprising the prime minister, the leader of the Opposition and the Chief Justice of India (CJI) would advise the President on ECI appointments.

However, the Centre passed the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which took the CJI out of the equation.

According to this Act, the Chief Election Commissioner and other Election Commissioners will be appointed by the President upon the recommendation of a selection committee comprising the PM, a Union cabinet minister, and the leader of the Opposition/leader of the largest opposition party in the Lok Sabha.

In March this year, the Supreme Court had then refused to interfere with the appointment of the two new Election Commissioners — Gyanesh Kumar and Sukhbir Singh Sandhu — and also refused to stay the 2023 law.

‘Quid pro quo’

According to Dave, “the complexion of the (apex) court has undergone a serious change and that is not good for the institution”.

Judges and chief justices, he said, “have lost the stomach to really correct the judicial system, which is…seriously politicised.”

He alleged that several judges in the past, including former Chief Justices of India Justice P. Sathasivam and Ranjan Gogoi, and former Supreme Court judge Justice S.A. Nazeer, “many of them, in recent times, having decided matters in favour of the government, have been offered lucrative constitutional positions (and) they have accepted them.”

“Somewhere, we have lost the bus. We need to bring back the judiciary on a platform on a level where it is fiercely independent and it really sticks to the Constitution and is not afraid of the political establishment, however strong the leadership may be,” he added.

Dave said that, currently, there is a clear case of quid pro quo among judges — “you give judgments in favour of the ruling establishment and you are rewarded with positions”.

Judges, he said, are being given important positions like Lokpal and human rights commission posts.

He referred to the appointment of former SC judge Justice Arun Kumar Mishra’s appointment as the chairperson of the National Human Rights Commission.

He opined that Mishra has “done precious little and that is why we find that hundreds and hundreds of people were encountered and killed in Uttar Pradesh.”

“Gross violations of human rights are being ignored and it was Justice Mishra who steadfastly supported the ruling establishment while he was a judge, and also supported some leading industrialists of the country,” Dave alleged.

Attack on Opposition leaders

Referring to the large-scale attacks against Opposition leaders and alleged scams being discovered in Opposition-ruled states, Dave called it an “extremely disturbing trend”.

“Not one leader of the ruling party, not one state government of the ruling party in states is being investigated,” he highlighted.

He emphasised that only judges, as a part of their checks and balances, can stop this malaise.

However, he added that “CJI Chandrachud’s leadership has not been able to do that at all”. Rule of law, he said, has become extremely weak in the country.

The judiciary, he said, also has its share of inefficient, incompetent and corrupt judges.

While highlighting the lack of sufficient infrastructure for the judiciary, he also complained of the judiciary being “rudderless”, and not having anybody to guide them.

On the petitions against the Citizenship (Amendment) Act, 2019, which have been pending for over four years now, Dave said that the court’s handling of the case “can be described as mishandling because the Supreme Court is not willing to hear many such sensitive cases”.

“Whatever may be the legal outcome, at least you must hear when this kind of law can be abused in the garb of identifying foreigners if you are going to target a minority community.”

‘Subjective fate’

In December 2023, Dave wrote an open letter to CJI Chandrachud, expressing his “deep anguish” over the listing of certain cases by the Supreme Court Registry, in disregard of the rules and established practice.

While he said that it would not be proper for him to list down these matters, the letter, which ThePrint has seen, added, “But it would not be out of place to mention that these matters include some sensitive issues involving human rights, freedom of speech, democracy, and functioning of statutory and constitutional institutions.”

In the interview, Dave reaffirmed his claims, asserting, “I don’t think the Chief Justice is so naive…that he doesn’t realise that certain matters going to certain benches will only meet a certain fate and that fate is not justice-oriented.”

“That fate is subjective fate, it is not an objective result, and yet he allows these matters to go before certain judges who will take that kind of a subjective view,” he added.

Dave also pointed to the trend of the BJP government to “engineer PILs” in Opposition-ruled states, and the judges, he said, are more than willing to entertain those PILs and pass all kinds of orders condemning the state governments, pointing out alleged corruption and ordering large-scale arrests.

He clarified that he is against corruption in every form, but added that “if you are going to target the Opposition-ruled states and Opposition parties in this fashion and allow the judicial process to be used for that, then I think nothing is left of the Constitution and nothing is left of the Rule of Law.”

‘No courage to face reality’

In the interview, Dave also referred to the hearing in the Supreme Court Tuesday before it stayed the order of the Calcutta High Court invalidating the appointment of 25,753 teachers and non-teaching staff made by the state’s School Service Commission (SSC) in the state-run and state-aided schools.

In the high court, the matter was heard by Justice Abhijit Gangopadhyay, who resigned as a judge in March and joined the BJP days later.

During the hearing Tuesday, Dave sought a stay on the high court order, highlighting Gangopadhyay’s conduct as a judge.

As a sitting judge, Justice Gangopadhyay had also given an interview to news channel ABP Ananda regarding Trinamool Congress (TMC) leader Abhishek Banerjee even as a case concerning the politician was being heard by him.

However, the hearing saw the CJI asserting, “We are not here to scrutinise the conduct of Justice Gangopadhyay”. “How sensitive or politically fraught the matter is, we are lawyers at the end of the day. Leveling allegations at the HC judges will not help,” the CJI had remarked.

Taking exception to the CJI’s remarks, Dave told ThePrint, “He (CJI Chandrachud) does not mind his judges having ideological inclinations, he does not mind his judges indulging in politics but he has some kind of exception when lawyers point it out. It only shows that the chief justice…does not have the courage to face reality.”

(Edited by Richa Mishra)