Pakistan’s judiciary has done much better than India’s: lawyer

NEW DELHI: Lamenting that the fourth pillar of democracy – the Supreme Court – in today’s times is “not as strong” as it can be and that the Collegium system has resulted in “some of the worst appointments in High Courts and Supreme Court”, senior advocate Dushyant Dave said that in many aspects, Pakistan’s judiciary has done much better than India’s.

Speaking at the ‘Bebaak’ event organised by Jansatta, Dave cited the example of the reinstatement of Chief Justice of the Supreme Court of Pakistan, Iftikhar Muhammed Chaudhry in 2009. “When Chief Justice Iftikhar Choudhry was removed in Musharraf’s regime, the entire Bar of Pakistan stood up and protested. Judges gave judgment and said the CJI must be reinstated. And, he was reinstated,” he said.

Dave said that there is no point in giving much time to “reserving” judgments or in open and shut cases. Elaborating on the case of Ajmal Kasab, the 2008 Mumbai terror attack convict, Dave said “I believe in the case of Kasab, we needn’t have wasted so much time. 

It was an open-and-shut case. The Supreme Court only wasted so much time, for what? I am not saying that Pakistan’s judiciary is better. I am saying that this (Iftikar’s case) is one example that says that Pakistan’s judiciary was fiercely independent during the dictatorship.

Launching a sharp attack on the Collegium system, Dave said that it had been a “disastrous failure”. “In nearly 40 years, from the time the Supreme Court gave judgment in the ‘Second Judges’ case in 1993, that the appointments of High Court and Supreme Court judges will be through the Collegium system, I believe that the worst appointments have happened in the past few decades in the judiciary.

In the last 40 years, many such judges have come who are just not eligible for appointment, who have no competence or integrity,” he said.

“There have been serious allegations of financial impropriety against many judges in the last 40 years, including many CJIs. (Former law minister in the Moraji Desai Cabinet) Shanti Bhushan had given in a sealed cover to the Supreme Court that several CJIs were corrupt, and Supreme Court never showed the courage to follow up with the case and subsequently dismissed the case,” the advocate added.

“Today I see in the Bar, there are many brilliant lawyers, who are eligible for appointments as HC, SC judges. But, they are not being considered because they have no influence with the Collegium members, or their ideology doesn’t align with the present government or with the earlier Congress government.

The Supreme Court advocate also said that The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, is a “disgrace” to our democracy and the rule of law.

“You might have never witnessed any minister’s land being acquired, or a judge or MLA or a rich businessman. The fertile land of farmers is being acquired by the government. They are then sold to business houses, who are the real beneficiaries…This doesn’t happen in any other country.

“What is all this telling us that there is something seriously ailing our judicial system,” he added. Dave also said that judges of the High Court need to be sensitised and the sitting Chief Justices have the “duty” to sensitise them, by correcting them or penalising them.

He further pointed out, “Look at a case of stalking. In one case, a judge said that stalking is not an offence…Imagine the plight of this woman who is being stalked, she will be fearing for her life. Judges are not sensitised at all. That is why I say people like CJI Chandrachud who go after giving lectures to the country and the world, do not do anything to sensitise the judiciary.”

He also said that there needs to be proper representation in the judiciary. People from minority communities, Dalits, women and all sections of the society must have adequate representation in the judicial system.

“Today, look at the minority problem. There are so many people accused in the Citizen Amendment Act (CAA) case who are lodged in jail. Their bail cases have been adjourned in the High Courts for so many times. It’s a big challenge for us. Justice doesn’t mean any kind of justice. It must be real justice,” Dave said.