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Dushyant Dave Interview: The reluctant SCBA president explains why he thinks the bar may be doomed and why no one is doing anything to fix it

Dushyant Dave says it how it is: Most bar associations & bar councils have been hijacked
Dushyant Dave says it how it is: Most bar associations & bar councils have been hijacked

“Bar associations are facing a very serious identity crisis and good lawyers are unfortunately not willing to participate in the democratic process in bar associations. As a result, most bar associations have been hijacked by those lawyers who don't have a serious stake in the institution or those who have a personal agenda, but not the welfare of the bar.”

Senior counsel Dushyant Dave is not known for mincing his words. “I'm an accidental president of the bar,” he says, about his road to the Supreme Court Bar Association (SCBA) presidency. “I came [to the SCBA] out of fear.”

His fear is all too real: bar associations and bar councils are a microcosm of politics, including as stages for petty individual rivalries, stepping stones for elected members into national politics, soft extensions of national political parties' power, or simple influence-grabs for lawyers who are usually whispered to be better at politics than at law.

Bar associations are the primary drivers behind the lawyers strikes that continually cripple courts (for multifarious and sometimes creative reasons, as reported by Mint and Legally India in October 2015, having been challenged in the Supreme Court, with the Delhi battle between the high court and district court bar associations a year ago being a case in point).

Many would argue that the riots and violence by lawyers outside Patiala House court earlier this year are also a natural consequence of the general malaise besetting the bar and its leadership.

Dave has been hoping to change a lot of that, although his tenures in bar politics have also been dogged by in-fighting and controversy.

Dave's ascent

Dave came to power in a hotly contested election as SCBA president in 2014, after the six-time president PH Parekh was ousted following a change in SCBA rules, capping to four the number of times any one lawyer could hold an SCBA post.

Dave was re-elected in December 2015 with a record victory margin and enjoys major goodwill from Supreme Court lawyer, but in February he shockingly resigned as SCBA president after differences with his executive committee.

Following nearly six weeks of back and forth – including Dave withdrawing his resignation, the executive committee then rejecting his withdrawal of his resignation, and finally accepting Dave as president again after deciding his resignation was never effective in the first place – Dave is now back in the saddle of the SCBA.

Dave's lament

He is pretty much on record with his views in no less a place than one of the most important Supreme Court judgments of recent memory. Justice JS Khehar, quoting Dave, had recorded the following in his National Judicial Appointments Commission (NJAC) judgment:

“We solicited his (Dave's) view, whether it would be proper to consider the inclusion of the President of the Supreme Court Bar Association and/or the Chairman of the Bar Council of India, as ex officio Members of the NJAC in place of the two “eminent persons”. His response was spontaneous 'Please don’t do that !!' and then after a short pause, '… that would be disastrous !!'.”

Dave still maintains that the bar's regulatory and political systems are deeply broken.

“I came (to the bar) in 1986,” he recounts. “Barring one or two really good leaders like Mr (KK) Venugopal, we did not get good leaders in the bar.” This resulted in a few lawyers monopolising and perpetuating power in the leadership of the bar, unopposed.

“The bar essentially consists of good people but it is this very vocal minority, which sometimes swings the electoral process to its advantage,” says Dave. “The democratic process is a very healthy way of electing a leader, but that process discourages serious stakeholders from entering the fray.”

“You would never find (Fali) Nariman, Ashok Desai or (Harish) Salve or (Abhishek Manu) Singhvi, or Mr Rohinton Nariman, before he became a judge, or Gopal Subramanium” standing for elected office at bar associations or bar councils, says Dave, rattling off a few from a list of generally respected senior counsel.

I have spoken to a lot of the top lawyers (about contesting in bar council and association elections) and none of them have said they will. They just don't want to come in. They are afraid of the vocal minority.”

There are two causes of their fear, according to Dave: 1. they are not sure they will get the necessary popular support to win, and 2. even once in, it is a thankless task.

But Dave says he is proof himself that it's possible: he didn't campaign and people were surprised he won. “It is ultimately an effort, but we are responsible for our bar councils to be hijacked.”

So would Dave consider running again for SCBA president or for a state bar council? No, he confesses.

But without fresh blood, how can there ever be wider change and improvement in the profession? “I am not sure how it will change, whether it will change at all,” he responds pessimistically. “It is a great dilemma.”

Dave's condiment

Dave is right that being a leader of the bar certainly comes with a permanent bullseye that many will take aim at, though he himself did not always take the easy routes that could have avoided being targeted.

When he resigned in February 2016, some of his opponents had argued that the fight was over samosas and Dave's ego.

Dave had decided a year earlier, that free samosas and sandwiches should not be given out at judges' retirement functions any more, to discourage non-serious advocates from attending only for free food. “The objection was not to serving samosas and sandwiches (or to cost) but to keep Supreme Court functions very dignified, very special and very confined to Supreme Court regular lawyers,” he explains.

True, Dave agrees he was not happy that his executive committee had decided to order samosas and sandwiches for Justice MY Eqbal's retirement function on 12 February, but the rift between him and some of his executive was older, argues Dave, ultimately resulting in a lack of trust and his inability to perform his role as president and reformer.

That has been sorted out again, he says. “We have now reconciled our differences within the executive committee and my colleagues are very very helpful now in the executive committee and have all decided to work together for the welfare of the bar. We have lost a precious three months.”

Dave had also attracted considerable criticism in July 2015, including from stalwarts of the bar like senior counsel Ram Jethmalani and PP Rao, after the SCBA had a confrontation with the bench and the then-Chief Justice of India HL Dattu over a lack of infrastructure for litigants and lawyers of the Supreme Court.

To pressure Dattu, Dave had called on all SCBA members to boycott all official functions with Supreme Court judges (a mostly symbolic but potentially personally offensive gesture, as no Supreme Court judge wants to remember a farewell retirement function after years of service, where most seats are empty).

It marked the “beginning of restoration of our dignity”, said Dave. Ultimately the gamble proved successful, and Dattu agreed to constitute a committee of judges that heard the SCBA's grievances.

Dave admits that it was a “controversial move”, though it was not his first.

In February 2015, he had written to Dattu about the “sudden and unannounced listing of matters”, and he notes “with a great sense of satisfaction”, that “not only my executive committee, but also all the majority of the members supported me when we questioned the absolute power of the CJI to constitute benches and fix matters at the last minute, which was causing immense injustice to lawyers and litigants across the country”.

While he accepts that Dattu had his own valid reasons – wanting quick disposal of cases - it was not conducive to the fair disposal of cases, argues Dave, and the confrontation was important.

“It was the first time in history that the bar confronted the bench, and succeeded,” says Dave. “Normally the bars are cowered by the bench, and no bar wants to take the judiciary on, but we felt that hasty justice is not justice.”

“In a democracy, the judiciary too is extremely crucial, because it really can protect the democracy very strongly,” explains Dave, “and a strong bar can protect a lot towards the democracy.

“Also tackling not just the legal and constitutional issues, many a times the social or political issues that confront a nation, what actually has a potential of undermining the democratic institutions, can be addressed by the bar. That is something that's been lacking last few decades.”

Dave's president

Dave has a long list of things he's proud of the SCBA having achieved in his tenure, such as an intensive three-day continuing legal education programme (CLE) designed by Professor Madhava Menon for 60 advocates.

“That turned out to be extremely useful for young lawyers,” says Dave, noting that the low number of permitted participants meant the teaching could be more “serious”.

“We must initiate the dialogue with prof Madhav Menon again to do it again.”

In a similar vein, the SCBA had also organised several lecture series, such as by Mahatma Gandhi's grandson Gopalkrishna Gandhi (who unveiled an SCBA-commissioned portrait of BR Ambedkar by Padma Shri-awardee artist Paresh Maity), Justice Rohinton Nariman (holding a three-part lecture for SCBA members just after he had joined the bench), and columnist Pratap Bhanu Mehta (on erosion of professions).

The SCBA also negotiated a low-price health insurance scheme (Rs 5 lakh of coverage for Rs 5,000 a year, also available to lawyers' clerks); fought to provide parking spaces for Supreme Court lawyers; solicited donations from senior advocates ranging from Rs 2 lakh to Rs 50 lakhs to build the SCBA's electronic library (Harish Salve contributed Rs 50 lakh, Dave, KK Venugopal and L Nageswara Rao each donated Rs 10 lakh); raised money to deal with natural disasters such as the Chennai floods or hardships that befell individual advocates and their families.

One of the biggest projects has been to expedite the allotment of 684 flats constructed for SCBA members in a special SCBA housing society in Greater Noida, which had been stuck in limbo for years. “Most of them had borrowed money from banks and were living in rented accommodation - this was the promised home and was delayed by over six years.”

Of course, some projects have been less successful, admits Dave – such as the SCBA's attempt to hook up young lawyers with seniors who can take them on as juniors, or its attempts to cover the entire Supreme Court with wireless internet, which were not “working optimally”.

And others are yet to be completed.

We don't even have one shelter (in the Supreme Court for litigants) to sit comfortably to have a cup of tea. People of eighty or ninety they come and don't even have a chair to sit,” exclaims Dave. “The institution depends on them (litigants) but we never cared for them.”

The current CJI, TS Thakur, was very conscious of the problem and the SCBA had prepared a design for a shelter for litigants. “If it happens it would be a phenomenal success,” says Dave.

He adds that he would also like to continue at least the intellectual pursuits of the bar, having better relationships between the bench and the bar, more continuing education, better infrastructure.

“I am really happy to say that in this Chief Justice, and have no doubt that even in the next few chief justices who are coming, we have great judges who are really bar friendly and are really conscious of the problems the bar is facing in terms of sheer inadequacy of infrastructure,” notes Dave.

Dave's content

So, despite the reticence of lawyers to participate in bar elections, there's some hope for things improving, says Dave.

The Supreme Court held in 2012 that for SCBA elections only those lawyers could vote who had declared that they would not vote in any other bar association elections, in order to discourage those lawyers from voting who may have no stake in the Supreme Court. “We have 16,000 members, but voting members are just 2,300,” relates Dave. “Even that number is, according to me, a little unacceptable - I don't see those 2,300 actually practising in the Supreme Court.”

The same challenges exist in every bar association, whether in the Delhi or other high courts, or in the district courts, says Dave. In the Delhi high court a similar one-bar-one-vote petition has been stuck for years.

And, while other seniors may not think so, he has himself been surprised by how rewarding the role of bar politician can be. “One can contribute in myriad ways. It gives me a great sense of satisfaction and some amount of pride that I could really achieve a lot last year.”

Having had the Chief Justice of India TS Thakur publicly request him to withdraw his resignation was a “great honour”, says Dave, and he adds thousands of lawyers have met him since becoming SCBA president and after withdrawing his resignation expressing their support. Particularly the lawyers, who with their families had moved into the SCBA housing society flats, had been effusive in their “love and adulation”, with some who had been in the profession for years and years, touching Dave's feet, he remembers.

“That's the satisfaction, ultimately everything is not about money,” says Dave. “Today in the corridors of the Supreme Court there is a great sense of positivity. And a great sense of camaraderie with me, tremendous love and affection is showered on me, which sometimes brings tears into my eyes.”

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