In a powerful and passionate interview, where he is equally critical of the government’s attitude to the Supreme Court as he is of the Supreme Court’s docile and timid defence of human rights, one of India’s best known lawyers has said: “I’m begging and beseeching the Supreme Court with folded hands to get out of its slumber and assert itself.”
Dushyant Dave, a former president of the Supreme Court Bar Association, was speaking about the Supreme Court’s response to several petitions regarding the government’s handling of the present COVID-19 crisis from the very start of the pandemic. However, the specific issue was the Supreme Court’s silence after receiving the government’s recent affidavit on vaccine policy wherein the government, in paragraph 24, effectively told the Supreme Court not to interfere on the grounds that setting a vaccine policy is part of the executive’s domain and not the judiciary.
Speaking generally about the Supreme Court’s behaviour over the last year, Dave said, “I’m deeply disappointed by the way the Supreme Court has discharged its duties during the pandemic.”
Dave said that Justice D.Y. Chandrachud’s absence, because he has tested positive for COVID-19, “should not delay proceedings for a day”. He added, “If it (the Supreme Court) doesn’t assert itself it will cede territory to the executive.”
In a moment of particular passion, Dave said the chief justice should immediately intervene and “constitute a bench of 7, 9 or 11 judges and task them to take up the matter” being handled by Justice Chandrachud before he fell ill.
The present stand-off between the government and the Supreme Court over the government’s vaccine policy, Dave said, is not just a telling indication of the government’s attitude to the court but, perhaps more importantly, a test of the court’s ability and capacity to defend its powers. He said the right to exercise judicial overview over administrative action is one of the most fundamental powers of the Supreme Court.
Dave agreed that already, four days of silence by the court after it received the government’s affidavit on Sunday has created doubts about whether the Supreme Court will stand up for its powers. He also agreed there’s a danger that further silence could suggest the Supreme Court’s default position is to accept the government’s stand.
If that happens, Dave said the Supreme Court will have failed to protect the rule of law. In that event, India will become a very different country to that envisaged by our constitution.