In a devastating critique of the judiciary, the Supreme Court and the collegium system, Dushyant Dave says: “We have a large number of judges who are highly questionable. They either lack the expertise or the knowledge and most of all the commitment.” Dave, one of India’s most highly regarded lawyers and a former president of the Supreme Court Bar Association, adds: “The Supreme Court is afraid of taking the executive head on.” Referring specifically to Prime Minister Narendra Modi, who he says is a “strong prime minister” like Indira Gandhi and doesn’t want the judiciary to question him, Dave says “unless we have a judiciary who is willing to question day in and day out” it will be failing the country, the constitution and the concept of justice.
In a 36-minute interview with Karan Thapar for The Wire, Dave was sharply critical of the collegium system. Citing the 1993 judgment which set up the collegium, he said it requires that the best available persons are picked. “Have they done that? Not in my view … I have seen some of my colleagues at the bar … being appointed judges in the last 10-15 years, especially in the last 7-8 years … who should not have ever been considered for judgeship … the kind of performance that they have today, the kind of judgments they pass … the kind of comments they make in the court makes me ask how is it that the collegium system is failing in not considering this?”
Speaking specifically about Odisha high court Chief Justice S. Muralidhar, Dave said his view is that the judge belongs is the Supreme Court. “He is one of the most outstanding judges in every sense of how a judge should be … but he’s not even able to get a good high court … and the collegium is sitting twiddling its thumbs.” Justice Muralidhar was transferred to the Madras high court by the collegium, but the government has put it on hold.
Many judges who have been appointed by the collegium to the Supreme Court, Dave claimed, have not written a single good judgment in their entire career.
Moving beyond the Collegium, the lawyer was also sharply critical of the Supreme Court itself. He said: “Not once has the Supreme Court exercised the power of contempt since 1993,” adding, “It shows that the Supreme Court is afraid of taking the executive head on.”
Dave also discusses three specific examples. The first is to do with the Supreme Court’s repeated failure to give bail, whether it’s to comedians or to opposition politicians. The second is the Supreme Court’s treatment of Muslims and, specifically, Shah Rukh Khan’s son Aryan Khan. In this case, Dave says that the judiciary should have immediately suspended or taken action against the magistrate who initially refused Aryan Khan bail when there was no case, leave aside evidence. The third example – which is a particularly radical one – is to do with the Supreme Court’s response when the BJP weans away MLAs to topple opposition governments. Using Maharashtra as an example, Dave said that rather than order a straightforward floor test which the court knows will fail, the Supreme Court should have either said that the MLAs who flew to Assam will not be allowed to vote or they must face quick re-election and only then be permitted to vote.
He also explains in the interview why he has spoken out when, as he put it, “nobody wants to speak. The bar is silent and the collegium goes on with its work as if everything is hunky-dory”. Dave also answers the question of whether he will face repercussions for speaking out the way he has.
