'Judges have families; they have their future to worry about.'
'In an atmosphere of fear, the judges are constantly under some kind of psychological pressure.'
'I have seen this is happening across the board in the country today.'
Senior Supreme Court Advocate Dushyant Dave, in this interview with Prasanna D Zore/Rediff.com, highlights how the Executive in India today is interfering with the independence of the Judiciary, but also holds the Judiciary responsible for not showing spine against the Executive.
"Their security of tenure is guaranteed (by the Constitution). There's no reason for judges to be scared," Senior Advocate Dave says in the first of a multi-part telephone interview.
Does the Executive undermine the Judiciary in independent India?
First and foremost, the Executive is not willing to sufficiently invest in judicial infrastructure and manpower, which is very much required because India's per capita judge ratio is perhaps one of the lowest in the world.
This is extremely troublesome and this has happened not just now, but over the last few decades. No government is interested in really supporting the Judiciary to develop as best as it can.
If you were to see today's Supreme Court, for example, barring court rooms 1, 2, 3, 4 and 5, other courtrooms are so slow that it is virtually impossible to get in and get out of those courts even when litigants are not allowed.
The infrastructure has virtually collapsed even in the Supreme Court.
On Mondays and Fridays, it is impossible to even walk along the corridors. If this is the situation of the Supreme Court, you can imagine what must be the position in the lower courts like the mofussil, trial and district courts. It must be appalling.
We need to increase judges. We need to provide all the facilities to judges. A judge adjudicating over criminal cases at the district and taluka level doesn't even have his own vehicle. He comes in a bus on which perhaps the criminal may also be travelling.
It's difficult for us to imagine what must be going through the mind of that judge because he is worried about his family. We need to really seriously consider these situations.
This is one way in which the Executive makes the Judiciary weak and inactive. And then the Executive constantly complains of (the backlog of) pending cases.
The second way is by stalling the appointment of judges at the district level and of the high courts and Supreme Court.
Although, the Judiciary is supposed to be making the appointments, the ultimate orders for appointment comes from the government and even then the government is, for some reason, unable to appoint judges in time.
There are very serious delays and the government is constantly at loggerheads with the Judiciary on appointments (of judges).
All these combined together causes very serious issues about the independence of the Judiciary because when the Executive doesn't like particular names, the Executive sits on those files.
(When the) Executive is very happy with certain appointments, their files were cleared in less than 24 hours.
Justice (Dipankar) Datta (former chief justice of the Bombay high court), who was recently appointed (as a Supreme Court judge), and who is a very fine judge, his file took almost three months for clearance.
Such tactics send a very chilling message to the judiciary that you either fall in line with us or we will delay your appointments.
The appointment of advocate Saurabh Kirpal (as a judge of a high court) is being delayed for the past several years for no reason.
You can't just deny (Mr Kirpal his due place as a high court judge) because he has a certain orientation (Mr Kirpal has on record said he is a homosexual). This is completely unacceptable in a democracy.
These are some of the ways in which the Executive constantly tries to intimidate and interfere with judicial independence.
The worst today is the atmosphere of fear prevailing in the country.
As Machiavelli has said, a leader who likes to rule with fear perhaps tries to adopt all kinds of methods.
Judges are not free of fear. Judges have families; they have their future to worry about.
In an atmosphere of fear, the judges are constantly under some kind of psychological pressure which is working on them. And I have seen this is happening across the board in the country today.
Judges are willing to decide against civil rights activists and Opposition leaders. When it comes to the BJP and its friends, judges are very reluctant to really take any decision, much less an inconvenient decision against them.
If you were to analyse some of the cases which have been decided in the last few years, especially since 2014 (when Narendra Modi became prime minister) -- I'm sure it was happening earlier during Congress times also -- but it has become far more prevalent and omnipresent in today's atmosphere.
This shows that fear is working on the minds of the judges.
Having said that, I must say that the judges are also responsible -- they take a Constitutional oath and they can only be removed Constitutionally, under a very detailed process.
Their security of tenure is guaranteed (by the Constitution). There's no reason for judges to be scared. So judges are also responsible for what is happening today; judges are therefore not showing the kind of backbone that judges are expected to show.
It happened during the Emergency when only Justice (Hans Raj) Khanna showed he had a backbone and justices like (P N) Bhagwati and (Y V) Chandrachud senior failed us (a majority of the judges on the five-judge bench ruled for suspension of Article 21 during the Emergency imposed by then prime minister Indira Gandhi; the judges who ruled in favour were then Chief Justice A N Ray, Justices P N Bhagwati, Y V Chandrachud and M Hameedullah Beg; Justice H R Khanna's was the only dissenting voice).
Mrs Gandhi was a strong leader and instilled fear and loyalty amongst judges. The PM today (Modi) is equally strong and so the effect is same.
Today there are judges who do show they have a spine. Justice (Sudhanshu) Dhulia, for example, in the Idgah ground matter of Bangalore and in the hijab case deferred with Justice Hemant Gupta.
Despite being a junior judge, he showed exemplary courage. There's no reason why judges should not show courage.