Thread by @barandbench

Justice Hosbet Suresh Memorial Lecture to be delivered by former Chief Justice of Delhi High Court, Justice AP Shah, today at 6 PM.

Justice Hosbet Suresh will be posthumously conferred with the Dr. Asghar Ali Engineer Lifetime Achievement Award, 2020.

Justice AP Shah will deliver a lecture on "The Supreme Court in Decline: Forgotten Freedoms and Eroded Rights"

The event will be Chaired by SCBA President, Senior Advocate Dushyant Dave.

Event begins:

Activist Teesta Setalvad delivers the welcome address on behalf of the co-hosts

Mansoor Ali Bohra from the Central Board of Dawoodi Bohra Community recalls the life of Dr. Asghar Ali Engineer in his opening remarks to begin the event.

Bohra: All his contributions and works have been documented in a biography that was released by then Vice President of India, Hamid Ansari.

Irfan Engineer introduces the Award that is set to be conferred on Justice Hosbet Suresh posthumously today.

The prize carried an amount of Rs 25,000 and a memento.

Irfan Engineer, son of Dr. Asghar Ali Engineer, now remembers the life and work of Justice Hosbet Suresh, particularly his work towards communal harmony, documenting instances of human rights violations and communal riots in India, among others.

Senior Advocate Mihir Desai to moderate the session.

Desai introduces Justice AP Shah and Dushyant Dave

"There are judges from their head, some from their heart and then there are other reasons. Justice Shah always decided from both - head and heart"

Desai: My memories of Shah J go back to when Justice Shah was a leading top lawyer in the Bombay High Court. In 1992, he became a Judge. When he went to Madras HC, we used to say Bombay's loss is Madras's gain and when he went to Delhi HC, we said Delhi's gain is Madras's loss.

Desai: And Delhi's gain, I just say was Supreme Court's loss.

Desai says Justice Shah's legacy goes beyond his Delhi HC judgment on Section 377 of IPC.

(Desai recalls Justice Shah's contribution towards numerous causes)

Desai (On Dushyant Dave): All those who know Dushyant Dave know him for his extreme articulation, both when he writes and when he speaks... and when he speaks, he speaks truth to power and that is very important.

Justice AP Shah begins his address, first by remembering Justice Hosbet Suresh and Dr. Asghar Ali Engineer.

"Even in the face of physical and verbal abuse which both men had to face, they continued to stand tall knowing their courage under fire was important"

Justice Shah: Justice Suresh said his voice was his conscience and this equally true for Dr. Engineer also and I feel their voice is the nation's conscience.

Justice Shah: The subject I deliver a lecture today on is a troubling issue and I want to ring some warning bells...

Justice Shah remembers the judgments in Kesavananda Bharati case, Maneka Gandhi case and others and says "Supreme Court has a glorious past".

Justice Shah touches upon the PIL jurisdiction which had its own praises and criticisms.

Justice Shah: The Supreme Court had its ups and downs and the ADM Jabalpur case is an example of this.

Justice Shah: On paper we are a liberal democratic republic. We have a system that is an envy of many. On paper the executive is held accountable and other pillars held accountable through other institutions.

But this is all on paper.

Justice Shah: In India today, all the institutions that hold the powerful accountable are being systematically destroyed and it all began in when the BJP came to power.

Justice Shah: We have not heard of the Lokpal in a long time, Investigating agencies are being misused, EC is suspiciously compromised. The idea of an unbiased fourth estate is dead and the civil society is being strangled to death. Worst of all is the state of Judiciary

Justice Shah: We might not be in a war but we are certainly in a state of emergency.

The start of the Court's decline coincided with the coming to power of the NDA government which was less centrist than we were accustomed to and more right-wing than they projected earlier.

Justice Shah: We know that the appointments and elevations, transfers of Judges are orchestrated mainly through the Law Ministry.

Justice Akil Qureshi, Justice Muralidhar were questionable but the Supreme Court did not say a word.

Justice Shah: There was a small watershed moment when in January 2018, four Judges of the SC held a press conference.

There were also some other moments like striking down with S66A, decriminalizing S 377, among others.

Justice Shah: Court's proclivity to buckle when the Court is pushed against the wall is not gone unnoticed.

Court generally is becoming more prickly in issues of free speech which is evident in the more recent Prashant Bhushan case

Justice Shah: We were told in Puttaswamy case that the ghost of ADM Jabalpur was buried but I fear that this ghost may be back to haunt us.

Justice Shah: A democracy gains its legitimacy by protecting the minority communities.

This power to protect minorities from tyranny of majority is for the Court to strike down laws for upholding the protection.

Justice Shah: The two cases that show that the Court is turning away from this duty of judicial review to protect minority rights is clear from cases of Sabarimala and Ayodhya.

The original Sabarimala judgment was very progressive but now a pandora's box of nightmares is opened

Justice Shah: This shows that Central government can conveniently ignore the judgments of the Supreme Court which are supposed to be final.

In Ayodhya, the judgment was unanimous but suspiciously anonymous in a case that was mainly political.

Justice Shah: The Hindu Mahasabha demanded withdrawal of criminal cases against the Kar sevaks for demolition of the mosque.

Justice Shah: In the face of colossal public health crisis, the lives of migrant labourers have turned upside down. Instead of taking on petitions on this, for the longest time, the Court refused to admit these petitions. The Court made several questionable remarks.

Justice Shah: The Court asked that the labourers were being given shelter and food, then what more did they want... or when the workers were killed in accident, Court asked how it could have stopped that.

Justice Shah: The suo motu cognizance also came very late. The High Courts were an island of home in this that took up issues of migrants and asked questions of the government on their plight

Justice Shah: The constitutionality of CAA was challenged before the SC and in the meantime, the government desperately tried to silence the protesters. More problematically, the judiciary is watching all this happening from the sidelines quietly.

Justice Shah: In UP Police have been given licence to go after the protesters... but the burning the issue in this has surely been in Delhi riots. Govt has been targeting those who engaged in honest protest, students were attacked by the Police.

Justice Shah: The strategy in Delhi has been to charge individuals for rioting, unlawful assembly and that awful colonial legacy of sedition and the new tool UAPA.

Justice Shah: The politicians who made shockingly inciteful speeches were not acted against and the one Judge of the HC who attempted to hold such politicians answerable was conveniently transferred.

Justice Shah: The Delhi Police has been accused of being partisan and politically motivated. The culprits from the majority community were allowed to get away.

Why were the politicians and Police so emboldened is because of a weak Judiciary

Justice Shah: The SC's interpretation of UAPA in NIA vs Zahoor Wattali effectively leads to that an accused must remain in jail for the entirety of his investigation.

Under UAPA, Courts must assume every allegation to be accurate.

Burden rests on accused to disprove allegations

Justice Shah: Bail hearings under UAPA now are nothing more than a farce and are nothing short of a nightmare for the accused.

This is being misused by the government, Police and prosecutors.

Justice Shah: The effect is nearly identical to the draconian Preventive Detention laws that existed during the Emergency. If we want to prevent the disaster of that era, this decision needs to be reversed.

This abuse of UAPA can be seen most in Bhima Koregaon cases

Justice Shah: There is a pattern behind these arrests.

Justice Shah: In Kashmir case, the SC has practically abdicated its role.

The decision in Anuradha Bhasin was laudable in many ways but failed to actually decide anything.

Justice Shah: There is also a pattern of judicial duty evasion in the Kashmir cases.

Over 1.3 Crore population of J&K is suffering because of the executive's internet shutdown and the SC does not seem to want to deal with real world problems at all.

Justice Shah: Many commentators have commented on how last three CJIs have often though their power as master of roster put many sensitive and politically sensitive cases before a newly retired Justice Arun Mishra.

Justice Shah: Today's situation was foreseen by then Chief Justice YV Chandrachud when he said that the threat to the Judiciary is more within.

Justice Shah concludes.

Senior Advocate Dushyant Dave to give his address now.

Dave: George Floyd's death in US, a movement of #BlackLivesMatter started. In India, with so many killings of Dalits, Muslims... nobody wants to speak up.

We the citizens have lost our courage to demand our rights and dignity. We have to find that courage to stand up

Dave: I'm not at all hopeful, I do not think that the fall of SC started because of 2014 but with the 1992 judgment where the SC grabbed the power to appoint judges themselves.

Collegium system works on give and take.

Dave recalls the instance when Justice PD Desai refused to participate in the oath taking ceremony of a Judge in Calcutta HC.

Dave: The administrative powers are being abused by the Collegium across the country.

In a country like India, the situation is very very difficult. We the citizens have lost our character and I don't know where we can rebuild it.

Dave: We have to begin from scratch to rebuild our character.

We must criticize Babur for what he did but we must appreciate Akbar also for what he did.

In India, democracy functions only during elections

Dave: In India, the Constitution does not matter... there is no rule of law. Rule of law is singularly absent.

Dave: Indians are second to none. If only we are guided by proper people

Every country these days is being governed by leaders who are dividing society vertically.

Globalization is being sought to be killed. What will happen to our pharma sector without Chinese ingredients?

Dave: The silence of the people is the most problematic and the conscience of the people has to be stirred.

Where is the dignity of citizens today?

If you can criminalise sickness based on communal lines then is this what we are heading at? (ref: Markaz incident)

Dave: If you can crimninalise them, then why not criminalise the 100 thousand people who went to Ahmedabad to see US President Trump?

Dave: Every ideology must be protected and respected.

In Constituent Assembly, Dr. Ambedkar had said that the fate of those Muslims who chose to live in India after Partition is in the hands of the majority.

It is the duty of the majority community thus to protect them.

Dave: Independence of Judiciary was maintained while drafting the Constitution.

But Dr. Ambedkar did not realise that we will come at a stage where the executive pressure would over power the Judiciary in the case of appointments.

I feel Collegium system has to be dyamited

Dave: We need many more people like Dr. Asghar Ali Engineer and Justice Hosbet Suresh.

We need Judges like Justice PD Desai.

Judiciary works because of both Bar & the Bench, but today where is the Bar? They come on TV but do they ever speak against the Judiciary?

Dave: The fallen standards of the Bar is something to be worried about.

Dave: In any country can you imagine a Chief Justice accused of sexual harassment is allowed to continue in office even for a day?

The woman was later reinstated, if her complaint was wrong, she would never have been reinstated.

Dave concludes his address.

"End by giving my homage with folded hands to Justice Hosbet Suresh and Dr. Asghar Ali Engineer"

Mihir Desai expresses gratitude to Dave and Justice Shah for their bold and passionate speeches.

Teesta Setalvad to moderate the Q&A session

(On how Judges should be appointed)

Justice Shah: Cannot go back to the old system of Executive appointing with the consultation with CJI.

The present Collegium system is completely opaque and operates like a Kabal.

NJAC perhaps would have been an ideal solution.

Justice Shah: The Court had the time to read down the law when the petition was filed against NJAC. They could have reduced the role of Executive.

But I'm against this system of Judges appointing Judges.

Justice Shah: At one time, this govt was very keen to bring NJAC and they wanted this power. Now they don't speak about this at all. Because, according to me, they have perhaps successfully penetrated the process for appointing Judges.

Justice Shah: We may have NJAC system that is acceptable to all stakeholders.

(On brazen attempt to criminalise dissent - example Bhima Koregaon case and Delhi riots case)

Justice Shah: People should raise their voices against these blatantly motivated investigations. But this is at one level.

Justice Shah: I would request Dushyant Dave to take up the Wattali case (on the interpretation of UAPA where evidence cannot be tested). Unless that judgment is overruled, I'm very pessimistic about the fate of the people languishing in jail under UAPA.

Justice Shah: I can tell you this much, I have studied Sudha Bhardwaj's case and the trial would be over in half an hour. There isn't much to be tried. But we don't when the trial will take place.

Henri Tiphange now proposes a vote of thanks.

"This event leaves us with a lot of hope"

(The event draws to a close)

We might not be in a war but we are certainly in a state of emergency: Justice AP Shah speaks on SC in Decline during webinar [LIVE UPDATES]

barandbench.com/news/justice-a…