There should be rule of law, not law of rulers: Sanjay Hegde

Senior advocate in conversation with Kailashnath Adhikari, MD, Governance Now

GN Bureau | April 27, 2022


#Jahangirpuri   #communal violence   #Sanjay Hegde   #judiciary   #courts   #Law   #BJP   #e-courts  


Coming down heavily on Delhi’s Jahangirpuri demolition drive, senior Supreme Court advocate Sanjay Hegde has said that in recent years many bulldozers have been used at various places including at homes of people who left the BJP to join other parties.

He said no rule of law or procedure was followed for razing homes and shops in the area. The government will bulldoze people homes and shops without following the rule of law because those who are illegally living there have no right to stay there. “If there is a rule of law, even if you want to bulldoze something there is a procedure. Now what you have is the law of the ruler. Irrespective of the Supreme Court order to stop the bulldozer, they insisted on a written order before stopping the bulldozer.”

Hegde was in a conversation with Kailashnath Adhikari, MD, Governance Now, during the webcast as part of Visionary Talk series held by public policy and governance analysis platform and speaking on Jahangirpuri communal violence in the capital and demolition of homes and shops that turned into a political war.

He said in Uttar Pradesh people from BJP who joined other parties had bulldozers at their homes, Atik Ahmed’s house in UP and Sanjiv Bhatt’s house was bulldozed. What happened in Khargone and followed elsewhere was the doctrine of collective punishment.

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While speaking on the Hijab controversy, Hegde who is a leading voice for civil rights said if a woman expresses a level of modesty she wants to practise and cover her head, a government cannot say that if she wears something on her head she cannot be educated at government expense.

“A government is funded by taxpayers’ money from all communities.” On the question of reasonable accommodation, should a government have a priority for enforcing the uniformity in a diverse country even at the cost of sacrificing education, he asked.

“If a young mind cannot question, has to be indoctrinated, regimented and .. uniform alone…people will drop out. You as a government have to decide are you are running a military training school, are you running a police school?

“If one side takes an extremist view, so can the other. Children can say, we don’t need no education, we don’t need no school, no false sarcasm in classroom, teachers leave kids alone.. you need reasonable accommodation and specially with the young. Once you start going down that road there are several dangers,” he said.

He further said, “If an ‘Ambedkarite’ government says any sign of asserting superiority shall be banned … supposing the brahmin sacred thread was banned, it is not part of uniform and will not be allowed. Will that be right? There are several dangers once you start going down that road.”
    
Asked how he handles media attention in high profile cases, Hegde said a lawyer has to do their best and forget about the rest till the matter is over. “Most of the time when a case comes to you it is at almost critical stage and beyond repair. The result is not always in your hands. You cannot overthink in advance.”

He said that even in cases where public sympathy is against one of the parties, the lawyer has to put in best of defence and ignore everything else. He said it is the judge who is the decision-maker and knows when somebody has put in their best efforts and everything that could be said for the unpopular side has been said, considered and dealt with legally.

Speaking further on cases that are high profile or involve a celebrity and come under glare, Hegde said such cases are unlikely to get relief in first hearing. Be it the policeman who makes the arrest or the magistrate or judge who has to deal with the remand and bail application at first instance are unlikely to extend t relief, else fingers will be pointed at them of being bought over or influenced. Such matters are then sent further up in hierarchy to high courts, etc, because those judges have constitutional protection and can be in piece.

Asked if the profession of law is recession-proof, he said even though it may not be the case, court room lawyers are always in recession as not many people come to them. “With the exception of rich or successful lawyers, an average lawyer barely makes a living and is permanently in recession. Legal profession has its own gaps of recession,” he said.

Speaking on the need to ramp up the infrastructure of Indian courts, Hegde said, in developed societies the situation is tilted towards outcomes unlike in India, where the government is the biggest litigant and departments are fighting with each other.

He said not only the legal system needs structural changes but in every matter people are dragged in processes. “In each and every matter people keep getting involved more and more in processes. The judge has 100-200 matters daily to deal with which is humanely impossible. We need to ramp up the number of judges and make systems such that they are tuned to the final matter, not steps and processes. An overall attitudinal change is needed. There is also an atmosphere of distrust between courts of instance and the appellate court.”

Asked if e-courts have been able to better deliver justice as compared to physical courts during the pandemic, the constitutional lawyer said e-courts ran on a platform which is not necessarily made for court systems and hearings in short matters were not very satisfactory. For longer constitutional matters where people wanted to hear the matter and even if there were glitches or something went wrong it could be easily retrieved.

“Yes, e-courts were better than having no courts and are there to stay. For longer constitutional matters, e-courts are good. Certain access to justice or lawyers all over the country has become easier to a great extent. There will a hybrid system and it will continue.”     

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