Lamenting that the fourth pillar of democracy – the Supreme Court – in today’s times is “not as strong” as it can be and that the Collegium system has resulted in “some of the worst appointments in High Courts and Supreme Court”, senior advocate Dushyant Dave said that in many aspects, Pakistan’s judiciary has done much better than India’s.
Speaking at the ‘Bebaak’ event organised by Jansatta.com, Dave cited the example of the reinstatement of Chief Justice of the Supreme Court of Pakistan, Iftikhar Muhammed Chaudhry, during the regime of former and late President Pervez Musharraf in 2009. Justice Chaudhry and other judges were unceremoniously sacked in 2007 by the then President and Army General Chief Musharraf during Emergency. They were reinstated in 2009 following massive protests.
“When Chief Justice Iftikhar Choudhry was removed in Musharraf’s regime, the entire Bar of Pakistan stood up and protested. Judges gave judgment and said the CJI must be reinstated. And, he was reinstated,” he said.
Further explaining his point, Dave said that there is no point in giving much time to “reserving” judgments or in open and shut cases.
Dave on Parliament security breach case
Elaborating on the case of Ajmal Kasab, the 2008 Mumbai terror attack convict, and the 2023 Parliament security breach case, Dave said that these are open-and-shut cases and the apex court should use discretion and not waste much time.
“I believe in the case of Kasab, we needn’t have wasted so much time. It was an open-and-shut case. The Supreme Court only wasted so much time, for what? I am not saying that Pakistan’s judiciary is better. I am saying that this (Iftikar’s case) is one example that says that Pakistan’s judiciary was fiercely independent during the dictatorship.
In the Parliament breach case too, such cases should not take time. Whatever may be their defence, you may consider it for reducing their sentence, but they breached Parliament’s security, which is a serious matter. Trial in such cases should be expedited and within a month they should be given a sentence. There is no need to delay the trial by two-four years. You can have MPs as the witnesses and finish off the case. These are cases I don’t know why our judicial system can’t fast track,” the former president of the Supreme Court Bar Association said.
Watch the full interview here:
Launching a sharp attack on the Collegium system, Dave said that it has been a “disastrous failure”.
“In nearly 40 years, from the time the Supreme Court gave judgment in the ‘Second Judges’ case in 1993, that the appointments of High Court and Supreme Court judges will be through the Collegium system, I believe that the worst appointments have happened in the past few decades in the judiciary.
Till the time the executive was there, some judges were bad, but by and large the quality of judges, in terms of competence or integrity, was impeccable…In the last 40 years, many such judges have come who are just not eligible for appointment, who have no competence or integrity,” he said.
“There have been serious allegations of financial impropriety against many judges in the last 40 years, including many CJIs. (Former law minister in the Moraji Desai Cabinet) Shanti Bhushan had given in a sealed cover to the Supreme Court that several CJIs were corrupt, and Supreme Court never showed the courage to follow up with the case and subsequently dismissed the case,” the advocate added.
Collegium system has been a disastrous failure: Dushyant Dave
“Collegium system has been a disastrous failure,” Dave said, adding, “If the power of appointment goes in the hands of the executive of the Supreme Court and the High Court, they will also appoint their people. They are doing it now as well through the Collegium system. There is an influence of the government in the Collegium system. In the past 8-9 years, the recommendations have been such which shows an influence of the government as well as an ideology, and this is the way HC and SC judges are being appointed. This is a major challenge before the country.”
“Today I see in the Bar, there are many brilliant lawyers, who are absolutely eligible for appointments as HC, SC judges. But, they are not being considered because they have no influence with the Collegium members, or their ideology doesn’t align with the present government or with the earlier Congress government. This has also happened during the Congress regime, not that it is only happening in the BJP government. Congress governments have also put pressure on the Collegium system and appointed people in their favour,” said Dave.
The Supreme Court advocate also said that The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, is a “disgrace” to our democracy and the rule of law.
“You might have never witnessed any minister’s land being acquired, or a judge or MLA or a rich businessman. Fertile land of farmers is being acquired by the government. They are then sold to business houses, who are the real beneficiaries…This doesn’t happen in any other country. If a businessman needs land, he will go to farmers, buy it at market rate and establish this factory. What is this Act that you acquire lands of people and they don’t get fair compensation, Dave said.
“What is all this telling us that there is something seriously ailing our judicial system,” he added.
‘Judiciary not sufficiently sensitised’
Dave also said that judges of the High Court need to be sensitised and the sitting Chief Justices have the “duty” to sensitise them, by correcting them or penalising them.
“Our judiciary is not sufficiently sensitised, especially over issues related to women, Dalits. Look 16 per cent of our population is Dalits. And, even to this day, if any Dalit takes out his baarat (marriage procession) sitting on a horse, that individual is murdered. We have a society where only a Rajput has the right to ride a horse? What kind of nation we are making of ourselves? It is a joke,” Dave lamented.
He was responding to a question over a 2023 judgment of the Allahabad High Court, which slammed live-in relationships saying that they were “systematic design to destroy the institution of marriage”.
He further pointed out, “Look at a case of stalking. In one case, a judge said that stalking is not an offence…Imagine the plight of this woman who is being stalked, she will be fearing for her life. Judges are not sensitised at all. That is why I say people like CJI Chandrachud who go after giving lectures to the country and the world, do not do anything to sensitise the judiciary.”
“As the leader of the institution, the CJI has to sensitise them by talking to them, and meeting them again and again. However, nothing is happening,” he said.
Dave also said that the CJI have the power to penalise judges over certain judgments, such as the verdict on live-in relationship by Allahabad High Court and ‘stalking is not an offence’ by the Bombay High Court, among many other judgments.
“Judges who do this, why don’t you (CJI) transfer them? The CJI can recommend to the government to initiate impeachment proceedings against the judges. We don’t want such judges in this system. The judiciary has to be proactive and be sympathetic to people’s needs. That sympathy is missing,” he said.
He also said that there needs to be proper representation in the judiciary. People from minority communities, Dalits, women and all sections of the society must have adequate representation in the judicial system.
“Today, look at the minorities problem. There are so many people accused in the Citizen Amendment Act (CAA) case who are lodged in jail. Their bail cases have been adjourned in the High Courts for so many times. It’s a big challenge for us. Justice doesn’t mean any kind of justice. It must be real justice,” Dave said.