Dissent cannot be disbarred

A few days ago, I woke up to the news that a petition has been filed in the Supreme Court to strip Dushyant Dave of his senior designation because of the submissions he made at the Bar while arguing in the Prashant Bhushan matter.

Not only is filing such a petition absurd, but even entertaining its thought is outlandish and outrageous, and reflects a mentality to destroy the principle of hearing the other side.

I am a first generation lawyer. The incident which I am about to narrate is of probably my second or third year into the profession when I was new at the Bar. Like a lot of new first generation lawyers, I was lost, and trying to figure things out at the Bar.

An afternoon hearing in COMPAT (the erstwhile appellate tribunal for Competition Law matters) was in session and the small room which was allotted to COMPAT at Shahjahan Road in Delhi, to function as a courtroom, was absolutely full. It used to be so full those days that there have been instances where lawyers used to start making submissions from behind the room and while doing so, wade through the sea of lawyers to get to the front.

The senior I was working with at that time was a regular at COMPAT, and since we were there almost daily, I knew the only way to secure a seat there was to reach about 5-10 minutes before the court resumes after lunch. Hearings in COMPAT matters involve complex issues and hence the files are voluminous. So I was carrying files that my senior needed for his hearing for that particular day. Make no mistake, even the relevant files were so many that they were almost to my chin level while I was sitting down with them on my lap.

Now, it is customary for a junior lawyer to offer his seat in a courtroom to a lawyer who is senior to him. This is out of the respect that a junior has for a senior lawyer. So while I was sitting with my face almost covered with files, I turned my head to the side and saw a senior standing beside me. My instinctive reaction was to try to get up and offer my seat to him. While I did so, the senior simply put his hand on my shoulder, gesturing me to sit down. I looked at him and requested him to please sit down, but he softly pushed me down, gesturing me to keep sitting, and also gestured me to let him hold some files for me to lighten my burden. I did not understand initially what he meant. Then he just took some of the files from the top and held them by his side, smiled at me and resumed hearing court proceedings.

That is Mr. Dushyant Dave, Senior Advocate for you, lightening the burden of his fellow Bar members, junior or senior.

This may just be a just a one-off incident, but it left a lasting impression on me. I have on numerous occasions given my seat to senior members at the Bar in high courts and the Supreme Court, but never did I feel the same sense of warmth that came from Mr. Dave. It is not that the seniors at the Bar are not sensitive, but just that when your matter is about to come, it is the only thing you are thinking about, and rightly so. Actions like that of Mr. Dave leave a lasting impression on junior members of the Bar who are looking for heroes.

We grew up studying how senior advocates like Nani Palkhivala saved democracy in India. Today, when junior members look around, they find very few voices who can stand up for a cause and call a spade a spade. Mr. Dave is one of those dwindling species at the Bar, which is nearing extinction, and when such men or women are gone or silenced, it will be another nail in the coffin for democracy. For then, who will speak for you?

Whatever Mr. Dave said while making his submissions at the Bar are all in the public domain. Yet, when someone files a petition to strip him of his senior designation for that, it shows that not everything is okay. Why is an attempt being made to silence the voices that are unpleasant? Unpleasant voices are the most essential component of a democracy. It is dissent that keeps a democracy alive, for without it, it would be a totalitarian and authoritarian regime.

Lawyers, as officers of the court, also have a duty to show the court the right direction – which is to do complete justice between parties. And when a lawyer feels he is doing so, he cannot be browbeaten and intimidated for that. The members of the Bar must come out openly in support for someone who is being bullied and the honourable ones on the Bench must also ensure that dissent is not stifled, for it is chaos that causes expansion. The ones in power should be questioned at all costs, for if they cannot be, can we still call ourselves a democracy?

Submissions made at the Bar are privileged, just like whatever is said in Parliament by its members. In legislatures, members have hurled chairs and mics at each other and yet have gotten away with it in the name of privilege. And members at the bar are being targeted for making submissions at the bar! How will lawyers make submissions then? How will a lawyer defend an unpopular cause in the court? If dissent is silenced, will any lawyer take up a brief to defend someone who has been wrongly accused or when public opinion is against him for political or other motivated reasons? Are we forgetting the spirit of democracy, which is to keep dissent alive at all costs? Stifling dissent is like slipping into a black-hole - first you feed it by throwing people into it and before you’ve realised it, it becomes so big that you are devoured by its insatiable hunger.

Whether submissions being made at the Bar are right or wrong is for the judges to decide. It is for reporters to report the proceedings of the court and for the public to make up their mind whether the power entrusted to the institutions is being properly exercised or not. Any institution in a democracy holds power as a trustee of the people and therefore they are answerable to people directly or indirectly. Like its said for transparency – sunshine is the best disinfectant.

Therefore any voice, be it of lawyers, reporters, journalists or the public, cannot be stifled in a democracy, however unpopular or unpleasant it may be, for to do so would be inching towards totalitarianism – bit by bit.

The author is an Advocate-on-Record at the Supreme Court of India.