Collegium system is the least harmful method to pick judges: Dushyant Dave interview

In an interview with TNM, senior advocate and Supreme Court lawyer Dushyant Dave who recently wrote to PM Modi about various issues in the country, opens up about a number of concerns regarding the Indian judiciary.
Dushyant Dave
Dushyant Dave
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Senior advocate and Supreme Court lawyer Dushyant Dave recently wrote an open letter to Prime Minister Narendra Modi expressing deep concern over minority discrimination and harassment. In an exclusive interview with TNM, he elaborated on why he wrote the letter and also opened up about a number of issues in the Indian judiciary.

After joining the Bar in 1978 and practising in the Gujarat High Court for 8 years, Dushyant shifted to New Delhi to practise before the Supreme Court. Over the last four decades, his practice has included almost every legal branch including civil, criminal, corporate, Constitutional, administration, and arbitration law. He has appeared in many cases arguing for fundamental rights and minority rights, and intervened proactively in legal matters of public importance. He has been the President of the Supreme Court Bar Association on three occasions and made significant contributions to the welfare of lawyers.

Here are some edited excerpts from the interview:

Q. In an open letter to PM Modi, you expressed your anxiety over the minority communities in the country who face discrimination and harassment. You also alleged that the judiciary is silent to their concerns. What do you think will be the future of the country in this context and what remedial measures do you suggest?

Dushyant Dave: The purpose of my addressing the letter to the PM was to make a public appeal to him for course correction, in view of the injustices being inflicted upon citizens belonging to minority communities. The examples given in the letter were revealing of the ground reality. The letter was written with fond hopes that the PM would intervene in his own way to stop such treatment, both at the administrative and judicial levels, in pursuance of his goal of ‘Sabka Sath Sabka Vikas’.

The challenges, be it political, social, economic, or external, can all be surmounted by a nation of 1.4 billion people. The people of India are second to none in the world and have amazing intellect in every field, and with their hard work and determination can achieve the goal set out in the Preamble to the Constitution easily. What really is needed is to galvanise the energies of the people for achieving this goal.

Q. Recently, acclaimed legal academic G Mohan Gopal cautioned about the increasing number of theocratic judges who find the source of law in religion rather than in the Constitution of India as a disturbing trend. He also raised the apprehension that the Sangh Parivar is trying to sabotage the Constitution, about which they had reservations from the beginning. The stated goal of the Sangh Parivar being the establishment of the Hindu Rashtra, are you concerned that the secular and egalitarian fabric of the Constitution will be frayed in the process?

Dushyant Dave: I have great respect and admiration for G Mohan Gopal, but I may not be able to endorse some of those views fully. Yes, there are challenges within the judiciary today as many judges are soft towards the right-wing ideology and end up taking views that may not be fully in tune with the constitutional ethos. But such judges are far and few. I have no doubt that the judiciary is extremely strong from within to emerge from any crisis and I have no doubt that Chief Justice DY Chandrachud and his colleagues, together with Chief Justices and senior judges of all the High Courts, are making efforts to ensure that the judiciary remains secular and independent.

Besides, the world over, the judiciary is facing similar challenges. Even the Supreme Court of the US is not free from leaning in favour of a particular ideology. Its recent decisions reflect this. The world is getting hugely polarised in terms of ideologies. The pendulum has swung from leftist ideologies and socialism to right-wing ideology across the globe. India is no exception.

We must carry with us in our march the minorities, the Dalits, and the tribals to make the real India. The idea of a Hindu Rashtra is really not in the best interests of the country.

Q. The Supreme Court has decided to appoint a ‘specialised committee’ instead of a Joint Parliamentary Committee to look into the allegations by Hindenburg Research against the Adani Group. This is the first time that a corporate group is under the scanner of a court appointed committee. What is the most appropriate way to deal with such an issue?

Dushyant Dave: The Supreme Court’s intervention in Hindenburg’s allegations against the Adani group could have been different in my opinion. Constituting a committee on its own motion was perhaps a wrong move. Time and again the court reminds us that it would not interfere in economic and political issues. Instead, the court could have directed the government and its agencies like SEBI, RBI, ED, CBI, and Income Tax to probe into the allegations in an independent manner.

Black money is a big problem in India. The transfer of much-needed funds by hundreds and hundreds of Indians abroad in an illegal manner has posed a challenge for decades. Despite repeated revelation and receipt of a list of names of foreign account holders, not much has been done for reasons best known to those in the government. India needs to crack a strong whip against such persons irrespective of their status. Even the petition pending before the Supreme Court initiated by the late Ram Jethmalani for unearthing black money has not been heard for almost 8 years. Somewhere, India loses focus on issues that need to be resolved and allows them to be forgotten at a huge cost.

Q. Could you explain how the appointment of judges can be independent? Is the Collegium sought to be abolished for professional and juridical or for some other reason? If judges cannot be trusted in relation to the appointment of judges, can politicians be?

Dushyant Dave: No system of appointment of judges can be perfect. Judges to the higher judiciary – Supreme Court and High Court – are appointed by judges themselves through the mechanism devised by them called ‘Collegium’ comprising the Chief Justice of India and 3-5 of his colleagues. This was devised by the Supreme Court in the early 1990s through judgments that are collectively called the ‘Judges Appointment Cases’ with the object of making the higher judiciary fiercely independent and strong.

While collegiums have achieved these objectives, in numerous instances they have failed resulting in serious challenges to the judiciary and in the dispensation of justice, thereby affecting the Rule of Law. Collegiums need to be much more vigilant than they have been, picking only lawyers with impeccable character, practice, and values. Mere seniority and seniority-cum-merit are entirely irrelevant criteria if the judiciary has to make itself competent and independent.

With over 50 million cases pending in courts, the appointment of judges in the lower judiciary is also important. The sensitivities required of the post must be present in every judge. I have been critical of the collegium system in the past. But in today’s political atmosphere, I feel that although not the best it is the least harmful of the methods to pick judges.

Q. India’s demand in the Kulbhushan Jadhav case that Pakistan comply with the July 2019 ruling of the International Court of Justice (ICJ) and allow consular access to Jadhav remains unmet to this date. Is there any legal remedy in this regard? How should India proceed to ensure compliance by Pakistan?

Dushyant Dave: Kulbhushan Jadhav’s case is a sad commentary on India. With great fanfare, the ICJ proceedings were conducted and televised across the nation to score political brownie points. In the end, Jadhav continues to remain in Pakistan’s jail without any consular access. India’s position today is much stronger internationally, especially with G-20 leadership. This is the right time to exert pressure and secure Jadhav’s release.

Open and backdoor channels must work simultaneously to get him back. If Israel can exchange Palestinian prisoners for their soldiers, there is no reason why India should not resort to such a move. Jadhav is a symbol of courage for the whole country and the nation must secure his release as early as possible.

Q. There is a view prevailing among the general public and even among the legal fraternity that the Indian legal system favours the accused in criminal cases. Is it because of the preponderance of the legal dictum ‘better a hundred guilty escape than one innocent person punished’? Given that, how can legislation that presumes guilt on the part of the accused – as in UAPA, for example – be defended? Why shouldn’t the onus of proving the accused guilty be vested with the State?

Dushyant Dave: ‘Presumed Innocence’ and ‘Burden of Proof’ are the two most salutary principles of criminal jurisprudence developed ever since mankind organised itself in a democratic manner. Every person who is charged in a criminal case is presumed to be innocent until found guilty in a trial where the entire evidence is considered objectively. The burden of proof must continue to remain on the prosecution because the right to remain silent is a sacrosanct right. It is a protection against torture. Even during torture, many times persons admit to crimes that they have not committed only to avoid further torture. Therefore, the prosecution must prove a charge against the accused.

Laws like PMLA (Prevention of Money Laundering) as now interpreted by the Supreme Court in the case of Vijay Madanlal Choudhary & Ors vs Union of India & Ors have no place in a free and fair democratic nation. Shifting of burden is clearly abused as we have seen in many cases including under the laws of NSA, UAPA, Public Safety Act, etc.

Rule of law would be worthless if the burden to prove innocence is shifted to citizens accused of many crimes, however serious the challenge must be. One of the lowest rates of conviction in India is on account of various factors including poor investigation by the police and poorer representation by the public prosecutor in courts, together with the inability of judges to dispense justice fairly and efficiently. Corruption adds to this. India needs to train the police at the lowest level to ensure the best investigation in a time-bound manner with respect to crimes.

It may also perhaps help if competent and independent public prosecutors are appointed who can be entrusted with overseeing the investigation as is being done in the US. That way, the police will be guided in the right direction that the law demands. However, under no circumstances can I ever dream of shifting the burden on the accused.

Q. Fr Stan Swamy died in judicial custody at the age of 84. He was booked under UAPA. So, he died under the presumption of guilt. Subsequent to his death, it has been revealed that incriminating materials were planted on his computer. As per the system, the trial of a deceased stops forthwith. Shouldn’t such cases be treated differently and the trial conducted to the point of clearing his name, if he is found to be innocent?

Dushyant Dave: Fr Stan Swamy’s death in judicial custody is a blot on India’s judiciary. Bail is a rule and jail is an exception, a principle that must be applied in all criminal cases except in the case of the most heinous and most dreaded accused.

The charge that if the accused is released he will interfere in the investigation and may influence the witness reflects poorly on our police investigators. That is hardly grounds to deny bail in a country where several hundred thousand undertrial prisoners remain incarcerated. In a given situation, a witness protection programme should be initiated and judges can take statements of the witnesses in cameras in the presence of only lawyers and judges of the state and the accused.

For every conceivable legal reason, Fr Stan Swamy deserved to be released on bail, and the trial court and the High Court successively committed great follies in denying bail to him. His was a case of a gross miscarriage of justice that was clearly avoidable, but the judiciary failed to live up to its expectations. His death perhaps is a grim reminder that in the future, judges must be more careful.

There are also cases like that of Aryan Khan who was falsely implicated in a narcotics related case and denied bail. A 21-year-old law intern in Indore was charged with no reason whatsoever, falsely implicated in a criminal offence that didn’t exist, and had to spend 54 days in jail thanks only to the judiciary and police, over-zealous workers of right-wing organisations, and local lawyers. Such incidents are aplenty in this country. Every one of those cases is a black spot on the rule of law, and reflects poorly on the judiciary. One only hopes that the judiciary will correct this miscarriage and that a day will come when they will not occur at all.

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