New Delhi: There has been a “virtual silence” on the part of the judiciary and it has left citizens “to fend for themselves”, senior advocate and president of the Supreme Court Bar Association Dushyant Dave said Saturday.
Dave was speaking at an online seminar titled ‘Role of judiciary in pandemic’, organised by the All India Lawyers’ Union.
He was particularly critical of the top court’s response to the migrant crisis, noting that in one of the hearings, it asked: “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 the judges have not tried to save the child? Every citizen of India is a grandchild of the Supreme Court of India,” he said.
“Judges have a pious Constitutional duty to protect every citizen. They can’t sit in ivory towers, blind folded and (not) see day after day the miseries of the citizens of India,” he added.
Dave also acknowledged the separation of powers among different organs of the government, but said, “All that judges had to do was to have told the executive that ‘we are here, we are watching you. Your actions and inactions are hurting the nation, hurting millions of people … We will not allow this’.”
The pandemic, he said, had given the judiciary a great opportunity to win over the hearts of the people, but the courts had missed out on it.
‘Judges failing in their duty’
Dave highlighted that the Constitutional framers envisioned the judiciary to supervise “executive actions and inactions”.
He asserted that judges had been “singularly failing in their duty” to hold the government accountable during the past eight weeks.
Referring to the Constituent Assembly debates, he pointed out that Dr B.R. Ambedkar had called Article 32 — which allows citizens to approach the Supreme Court against violation of their fundamental rights — as the most important Constitutional provision.
But now, judges were not willing to follow the Constitution, he said.
Dave went on to say that it was the bar’s duty to remind the judiciary of its role. “If the judiciary’s conscience is dead, it is the duty of the lawyers to stir up that conscience. When the judiciary is not acting, we cannot simply watch and do nothing. Unless the bar unites and puts pressure on the judges to act, we will not be able to galvanise the judiciary into action,” he said.
Judiciary must adjudicate
Senior advocate Gopal Sankaranarayanan agreed with Dave’s assessment.
“When the Supreme Court was given an opportunity to step in because the migrants were not being taken care of and immediate steps were required, they turned away.”
Speaking to ThePrint, he added, “They (Supreme Court) declined to entertain those petitions and instead got distracted by two things. One, saying that we need to trust our governments at a time like this, and two, questioning the locus of the petitioners. Both were completely misdirected in this case.
“Trusting the government is not the job of courts. Second, the migrant issue was writ large in every single press and media, so there was no doubt that there was a problem. If there was a problem that needed to be addressed, to shoot the messenger was not the correct way to go about it,” he added, referring to the court’s orders to the media to publish the “official version” of events. The government had claimed that fake news had led to the mass reverse migration of workers during the lockdown.
He also pointed out that more than a dozen high courts of the country had entertained petitions on labourers and questioned their governments.
Senior advocate K.T.S. Tulsi, however, said that while this is a viewpoint that is gaining traction, he believes that “even in earlier cases where the judiciary intervened, many of the problems were of administrative nature, which can’t be resolved by the judiciary”.
“I do believe that the judiciary’s prime responsibility is adjudication, which is becoming longer, and therefore, more painful. The judiciary should really focus on adjudication and not stray into the executive or legislative field,” he added, highlighting the separation of powers between the legislative, executive and the judiciary.