The Supreme Court failed to act as per its constitutional role to protect the basic rights of the citizens of the country during the COVID-19 lockdown, said Dushyant Dave, Senior Advocate and President of the Supreme Court Bar Association on Saturday.
Dave was particularly critical of the SC's response to the migrant's crisis, whereby it chose to believe the claims of the executive and refrained from making any meaningful interventions.
"Judges cannot sit in ivory tower and be blindfolded to the miseries of the citizens of India", he said.
Expressing disappointment at the SC closing a case for migrants welfare by observing "How can we stop them from walking", Dave said :
"If the judges had seen their grandchild walking on the road, and suddenly see a car rushing from the other side, would they not have tried to save the child? Every citizen of India is a grandchild of the SC of India".
"I really do not know what is that prevents judges from acting as per their constitutional oath", he said.
Dave was talking at a webinar organized by the All India Lawyers' Union on the topic "Role of Judiciary in Pandemic".
He said that the Constitutional framers wanted judiciary to supervise and control both the executive's action and inactions. Article 32 of the Constitution, which enables a citizen to directly move the SC for enforcement of fundamental rights, was described as the 'soul of the Constitution' by Dr. B R Ambedkar, Dave reminded.
He clarified that he was not meaning to say that the judiciary should interfere in the day to day functioning of the executive. The Constitution has demarcated the boundaries of each segment of the State.
But when the executive is failing in its duties, when citizens' rights are taken away in an arbitrary manner, the judiciary has to step in.
"All that judges needed to do was to tell the executive that 'we are watching you. Your actions and inactions are hurting the nation, hurting millions of people. We will not allow this'", he said.
Had the judiciary told the executive in strong terms that it will not let a single migrant worker suffer, the executive would have taken immediate measures to ensure their welfare, he added.
The judiciary had been otherwise intervening in several matters under the garb of PIL, but when it came to the crucial issue of lockdown crisis, it chose not to act.
The SC has singularly failed in its duties, he lamented. SC not only has powers, but also has duties to protect the fundamental rights of the citizens. Without remedies, the constitutional guarantee of rights is meaningless.
"The pandemic gave a great opportunity to the judiciary to win over the hearts of the people and get back to the position of respect which it commanded for a long long time", Dave said.
He said that it was "unfortunate" that the judiciary missed that opportunity.
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He opined that the the judiciary is singularly and systematically compromised. Even the outstanding judges within the judiciary, who may be in the majority, are also silenced.
"What is stopping outstanding judges from taking up matters suo motu? They should confront the chief justice's powers of master of roster. But they are remaining silent", he said.
Instead of reminding the executive of its duties, the judiciary, at the invitation of the executive in a self-serving PIL, reminded the people of the country during the lockdown that they can be published for violating the lockdown guidelines under Disaster management Act.
Dave also highlighted that the judiciary displayed similar passivity when millions of people were put to hardship due to demonitization.
"The same SC let down the country when demonitization was announced. The entire exercise proved to be a disaster. It did not achieve results except causing sufferings to millions of people. It did not wipe out black money. Government has not come out with figures".
The nationwide lockdown with a 4-hour notice was a similar disaster, he opined.
Migrant Workers Cases : SC Failed To Rise To The Occasion
He added that the public opinion about judiciary is highly negative.
"If you see social media today, there are thousands and thousand of people who are absolutely critical about the judiciary. It is a different matter that the judges do not read them.
But people are not thinking well about them. And this is not good for the nation.I love my judiciary. We want our judiciary to be better, effective, to give results and protect citizens and stop the executive from taking away our rights with lockdown of 4-hours notice and demonitization. We want them to act", Dave said.
The same judiciary failed the people in the times of emergency, he added.
"This is not an emergency. The fundamental rights are not suspended. Yet, the judiciary has suspended the effective enforcement of fundamental rights", he said.
He stressed that the bar has the duty to remind the judiciary of its roles, when it is failing.
"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 put pressure on the judges to act, we will not be able to galvanize the judiciary into action. If we don't do that, history will not be kind to us, and we will be condemned as a generation which failed the nation at a time of crisis", Dave said.
"We must speak as much as possible. People should not talk in whispers but openly. Constructive criticism of judiciary is not contempt of court. This is an appeal to beseech the judges to act and to make them realize what their status, powers, duties and roles are", Dave appealed.
He also spoke about the need for restoring the regular functioning of the courts. The Courts should not just hear matters of public importance, but also should immediately start hearing ordinary cases of individuals.
"The lockdown has brought the judicial functions to a standstill because our judiciary is not technologically advanced. Judges must analyse the situation and bring in an immediate computer revolution. They must discuss with the best minds in the country", he said.
"I have strongly been of the opinion that the e-court system needs to be done as best as possible, but hearings need to start. There is inertia on part of judges to do things. Or judges are overreacting to COVID", he said in reply to a question whether the Court is infringing the fundamental rights by restricting its functioning.