Interview: Dushyant Dave

Dushyant Dave: Laws must provide out-of-box solutions

Print edition : September 25, 2020

Dushyant Dave. A file photograph. Photo: V. Sudershan

Interview with Dushyant Dave, president of the Supreme Court Bar Association.

Do you agree with the process set in motion for criminal law reforms and its timing?

Laws need constant review with changing times and changing societal needs. More so with criminal laws. So, if the government’s intention is honest, and it must be, there is nothing wrong in its efforts to initiate the process by constituting a committee of experts. However, I do feel the Law Commission is the most well-equipped body to undertake this exercise and it can constitute sub-groups to carry out initial research. But then the Law Commission must comprise the best available [legal minds] in the country. In the last few years, governments have made poor appointments to most bodies such as the Law Commission.

Do you feel that the setting up of this committee in a pandemic situation is another example of executive overreach? Moreover, it lacks representational diversity, which has attracted criticism.

I don’t know the constitution of the committee, but it must have people representing vulnerable sections, especially minorities, women, Dalits and other underprivileged sections. Only then can it achieve a just balance in suggesting reforms in criminal law. Activists and civil society leaders must be involved. Yes, instead of asking the Law Commission [to do the work], constituting a committee in its place is an overreach.

Why not? It can if there is an honest, widespread and meaningful consultation with all stakeholders, including society at large, lawyers, judges, law enforcement agencies, social workers, etc.

During the exodus of migrant workers following nationwide lockdown, we saw how the police behaved with them. There have been many such instances of police highhandedness of late. Do you think the committee should address these issues more specifically in terms of having strong procedural laws that uphold the presumption of innocence of an accused?

The reform process must also address police reforms and must provide for stricter punishment to the police and other law enforcing agencies for wrong arrests, inhuman treatment, torture, custodial deaths, damage to dignity and reputation, among other violations. These must be made non-bailable and cognizable. The judiciary must be given mandatory powers to take suo motu action in such cases.

On the one hand, many offences have been decriminalised. But, on the other, there is an increasing tendency to book people under the most severe of laws like sedition…

Of course, laws like the Unlawful Activities Prevention Act must be reformed drastically. Only in the last few days the Gujarat government began the process of promulgating an ordinance amending the Prevention of Anti-Social Activities Act (PASA) to make posting of messages on social media an offence if the messages are false or offensive, in a wide sense. These laws have to be applied very strictly. The arrest of hundreds of persons belonging to the minority community for raising their voice against the Citizenship (Amendment) Act is a blot on governance by the executive and the role of the judiciary.

Similarly, the Armed Forces Special Powers Act needs to be repealed as under its garb thousands of young men and women have been killed in the name of fighting terrorism. Yes, terrorism must be dealt with iron hands but not indiscriminately and wantonly. We are on a wrong path, as Northern Ireland can tell us.

It is strange that despite having laws for almost all offences under the sun, there doesn’t seem to be any let-up in crimes against the poor, Dalits, minorities, women and children. Would you agree that there is an anomaly in the application of criminal law and, by implication, in the criminal justice system?

Yes, crimes against all vulnerable sections of society, including minorities, Dalits tribal people, poor people and women, among others, must be curbed as fast as possible, and for that laws must provide innovative and out-of-box solutions. The Evidence Act must allow use of modern technology and tools while sticking to the basic principles of criminal jurisprudence, right to remain silent ( for the accused) and burden of proof (on police).

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