Judiciary In India Has Become Majoritarian : Sr Adv Dushyant Dave

The judiciary in India has become a "majoritarian judiciary", said Senior Advocate Dushyant Dave in an interview with LiveLaw. He said that the judiciary is remaining silent while several transgressions of law are taking place at the instance of the Executive.

"You must realize one thing that the Judiciary across the country, including the Supreme Court, has become a majoritarian Judiciary, and as a result of that, the Judiciary is unable to really strike at the wrongs which are committed in the society. And this does not reflect well on us," Dave said.

Pointing out that the Courts have not stopped the trend of "bulldozer justice" - whereby the houses of persons accused of crimes are demolished, especially after communal riots - Dave asked :

"Are the judges of High Courts and Supreme Court blind? When the police uses bulldozers to demolish homes, shops and businesses, are they blind? The Judiciary remains silent. I mean frankly, there is complete hypocrisy on the part of the Judiciary, with the greatest respect. You(Judiciary) have to assert. You have to ensure the rule of law prevails irrespective of religion, irrespective of status, irrespective of caste, irrespective of anything. If the Judiciary is not able to do that, you are increasingly on a daily basis ceding the turf to the executive and as a result of that, the executive is getting more and more and more emboldened. It has taken the law into its own hands and the citizens are suffering as a result of that."

He asserted that the "judiciary is today at its weakest in the history of Modern India."

"Even during the British Raj Judiciary was not as weak as it is today. I dare say, today judges are just not willing to confront these kind of violations, gross violations of human rights attacks on civil liberties, attacks on constitutional institutions. Nothing is being done by judges. Is the Judiciary not responsible for ensuring that democracy remains vibrant? The last hope was Judiciary but that according to me last hope is dashed by judges themselves."

In this context, Dave referred to certain examples of judicial interventions in other Countries. In Israel, the civil society stood up against the Prime Minister's laws which sought to diminish judicial independence. The Supreme Court of Israel struck down the judicial reforms law. "In a country where there is such a powerful Prime Minister, the Court struck down those laws. And they held so when the war is going on against the Hamas," Dave said.

In Pakistan when Chief Justice Ifthikhar Muhammad Choudhar was removed, the judiciary struck back at Dictator Musharaff Alam and asked him to be reinstated. In Kenya when the Presidential Election took place a few years ago, the Kenyan Supreme Court said that the entire process was rigged and ordered a fresh election. In England when Boris Johnson did not call the house, the Supreme Court of England intervened and directed to call the house.

"That's the kind of Judiciary we expected our Supreme Court to be. These judges pride themselves saying 'we are great'. No, you are not great any longer. You are not great because by your judgments, you are showing that you are timid. You are not able to withstand a strong executive. You must stand up. I'm not saying that every decision of the executive is wrong. But you can't be seen to be approving every decision of the executive. Also, you have to test them. Unless there is that tension between the executive and the Judiciary, democracy is gone. It's only on in this book(showing a book of the Constitution). It's not there in reality."

Acknowledging that the judiciary has some outstanding judges, Dave said that he was beseeching them with folded hands to protect the rights of the people and intervene wherever the executive was going astray.

"Stand up for the citizens. Don't allow injustices to take place at the hands of the executive," he urged.

Dave also voiced his criticism of the "bulldozer justice" trend.   "I can show you millions of illegal shops in Delhi tomorrow. Are you willing to take action against them? No. There are hundreds of colonies in Delhi which are illegal. I see government lands are being occupied illegally by people day in and day out. Nothing is done. So, why the selective targeting and why should the Judiciary be silent?".

Future of Indian Secularism

Responding to a question raised by interviewer Manu Sebastian about the future of Indian secularism, Dave said :

"I think we have become a majoritarian nation and I don't think secularism means anything at all.  Because if politics is now the way politics is ...you know you could not even appeal to the voters in the name of religion. That's the law under the Representation of Peoples Act. That's that's how the Supreme Court Constitution Bench interpreted.  Yet in the 2014 and 2019 manifestos, the BJP said we will build the Ram Temple and they have built it thanks to the Supreme Court, only thanks to the Supreme Court. So which secularism you are talking about?".

"We have become a Hindu nation and I am really sorry we didn't need to. Hinduism is a beautiful religion. I'm a proud Hindu. But as a nation, we are extremely homogeneous. We have multiple cultures. Besides Hinduism, Jainism came, Buddhism came, Islam came, Christianity came, Zoroastrianism came, Sikhism came.  Every religion has thrived in this country. We don't need to become suddenly great Hindus. It's not needed. Hinduism is about spirituality, it's not about this kind of... I mean yes it(secularism) is basic structure of the Constitution, but that's only on paper. I think we have ceased to be a secular nation."

The full video of the interview can be watched here.

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