00:00Raise the big questions. If election commission decisions are unanimous,
00:04then why did two election commissioners object in writing to decisions on more than one occasion?
00:11Why did the ECs red flag the Form 6 online declaration and one of them call it illegal
00:16and unauthorized? Why did they raise the red flag over gradual centralization of electoral roles?
00:23Why did the ECs, two ECs claim they were not consulted before lacks of appeals were filed
00:29in Bengal in a near identical fashion through the EC's office? Why did they write to the
00:34cabinet secretary raising concerns over work allocation? So were the decisions of the election
00:39commission really unanimous in that sense or are there several questions to be raised?
00:44Joining me now, Justice Lokpal Singh is former judge of Uttarakhand High Court. He's come out very
00:49strongly in support of the Chief Election Commissioner Gyanesh Kumar and Dushyan Dave,
00:54Senior Advocate Supreme Court, who's been very critical of the way the SR process has taken
00:59place. I want to come to you, Mr. Dave first. Very clearly in their affidavit, the EC is saying all
01:07decisions, including the decision to hold an SR in the first instance, was unanimous. And therefore,
01:14reports, newspaper reports suggesting that there were these, there was dissension in the ranks,
01:19the decisions were not unanimous, are untrue and false. How do you respond? Is the EC giving itself
01:26a clean chit? Well, Rajdeep, you know, the situation in the country today is that it is virtually impossible
01:34to trust any constitutional institution. Election Commission of India is a caged tiger now. And the
01:43affidavit that has been filed on its behalf, frankly, raises more questions than answers.
01:48It's really a sad commentary on the part of, you know, these institutions, that they are working
01:54under pressure from the executive, which is very powerful today, as we are seeing, as we saw during
02:00the emergency in 75 to 77. It's really, it doesn't speak well, it doesn't augur well for democracy,
02:07because one thing which is very clear in this country today in public life, that truth is the
02:13victim. We will never know what the truth is. We will never know what the reality is. We will never
02:19know what those two, you know, learned election commissioners objected to. The fact of the matter
02:25is that the election commission, you know, has carried out this exercise, which they are entitled to.
02:30Nobody can question their right to conduct the SIR exercise. But the fact that they are throwing out
02:36crores and crores of people. For example, in Delhi, 47 lakh people were, you know, kept out. And now
02:43they are saying that 33 lakh may be brought back. Now, if you are going to bring back 33 lakh
02:48today,
02:48why did you not bring back those lakhs of people in Bihar and West Bengal before the elections actually
02:55took place? Now, you know, it therefore raises extraordinarily disturbing questions about the
03:01functioning of these institutions and the very functioning of democracy of India, which is the
03:08world's largest democracy. No, are you saying, are you saying therefore, Mr. Davey, that when the EC says
03:13his decisions were unanimous and tells it on affidavit, sworn affidavit to the Supreme Court, they are telling
03:18only a half truth? Is that what you are saying? Or a lie? I have no faith left in any
03:27constitutional
03:27institutions. And I will take this affidavit, not with a pinch of salt, but with a back full of salt.
03:34You know, those are very strong words coming from you that you will take the EC's affidavit with a
03:39back full of salt. Justice Lokpal Singh, are you as skeptical as Dushan Daves or do you believe
03:45that the election commission has to some extent set the record straight?
03:53So far, the election commission of India is concerned, an affidavit has been filed before
03:58the honorable Supreme Court. The affidavit discloses all the facts that the decision was taken
04:04unanimously and there was no unilateral decision taken by the chief election commission of India.
04:10So, there is no occasion to disbelieve the affidavit filed or not by the officers of the
04:16election commission of India. Supreme, if a person files a false affidavit, he has to face the
04:23consequences. But what about the facts, sir? What about the facts, Justice, Justice Singh? What about the fact
04:30that 14 objections were recorded on decisions taken by the EC by at least 14 objections in 10 months,
04:39many of them on decisions taken by the EC by the two other election commissioners. They recorded one of
04:45them specifically said that the decision to treat the declaration to form 6 online was illegal and
04:55arbitrary. Now, are we saying that what they said in the notings on the file is now different to
05:01an affidavit before the Supreme Court? But the affidavit says that those objections were raised,
05:11the objections were considered and the decision has not been implemented. So, taking the objection is one
05:19thing and implementing without taking and without considering the objection is another thing. Once the
05:26objection is raised and objection has been considered then and no implementation has been done.
05:32Sir, but they are saying decisions were taken without consulting them. In their objection,
05:36sir, they are saying decisions were taken without consulting them. How does a decision become
05:40unanimous if it is taken without consulting them? There is no such affidavit filed before the
05:49Honorable Supreme Court. No, that's my point. They have not said it in the, they have not said it in
05:53the Supreme
05:54Court. They have said it in their notings. No, no. No, no. Once the affidavit has been filed, it has
06:03to be
06:03considered in its spirit and there is no occasion to disbelieve on the affidavit and the affidavit has been
06:11filed with sincerity and no one will be dare to file a files affidavit before the Supreme Court because the
06:18consequences are so high. Otherwise, the person will be in trouble and will face the consequences.
06:27So, you are saying therefore that… General opinion is that… So, you are saying once an affidavit has been
06:33filed particularly by a constitutional body like the EC, it has to be taken seriously. Dushan Dave, are you
06:40being overly skeptical then when you say that you will take the EC's affidavit with a back full of salt?
06:45This is the election commission of India as Justice Lokpal Singh is saying, if they have lied on the
06:50affidavit, it has huge consequences. Well, I respect Justice Singh's viewpoint. There is no doubt that, you
06:57know, if somebody files an affidavit, it is filed with full sense of responsibility. But today, situation is very
07:03different in the country. Every institution is under fear, including the Supreme Court of India. The
07:10executive has become so powerful that no institution today, you know, is willing to discharge its duties
07:16as constitution commands them to do. And therefore, I mean, whatever the affidavit says, I won't take it
07:24as a gospel truth. Frankly, you know, a very fine investigative journalism revealed to the nation
07:30that there was something very seriously remiss in the functioning of the Election Commission of India.
07:36And that is not disputed in this affidavit. So, you know, that's one thing. Secondly, for example,
07:44Form 6. Now, there is no dispute about the fact that along with the Form 6, there was an attachment.
07:50Now, you may say that we have not changed Form 6, but you tried to change the Form 6 by
07:55adding an
07:56attachment to that which was clearly impermissible. You know, I think, frankly, that today we are in a
08:04situation where we do not have an extraordinarily and fiercely independent Supreme Court of India. And we
08:12need that. Unless the Supreme Court is willing to test, you know, every statement that is made in this
08:19affidavit, you know, clearly, and, you know, I would say very, very strongly, it is very difficult to honor the
08:27truth. And I have very serious doubts that today's court is really capable or is even, I would say,
08:35interested in really finding out the real truth behind such affidavits. We need judges of the 70s, you know,
08:42who were so strong. And, you know, as I have always said, my guru has been Chief Justice P.D.
08:48Desai.
08:48And if it was his court, I can promise you, Rajneem, sir Desai, that truth would have been brought out
08:55by the court.
08:57Sir, sir, sir, no, no, but the fact is judges also capitulated, as you well know, even in the 1970s,
09:04sir,
09:04we know what happened in ADM Jabalpur case. We know what happened during the emergency.
09:08There was a super session by the executive. Are you likening the situation of judges today to what
09:14was happening before the emergency? Is that what you are saying? That there is so much of fear that
09:19they are unwilling to challenge the government of the day? Absolutely. There is no doubt about it.
09:24From 2014, we have seen every succeeding Chief Justice of India catapulating in one form or the other.
09:30And we know the reasons why they have catapulated. We know we can't discuss it on television,
09:35but those reasons are extremely damning and very serious. And large number of judges, we have seen,
09:42you know, how justice is being meted out in the court today. Every top industrialist is succeeding
09:47in Supreme Court in every case. Poor man is not getting justice. Political opponents are not getting
09:52justice. Critics are not getting justice. I mean, we have really seriously to ponder and I have been
09:59repeatedly begging the Supreme Court with folded hands that you are the ultimate custodian of the
10:05Constitution. You are the ultimate custodian of fundamental rights. Please bring yourself up
10:10to protect them as brilliantly as you can, as law expects you to do.
10:15No, no. So, what do you expect? No, no. Before I go to justice, I want to know what do
10:19you expect in
10:19a case like this? Because, you know, the judges will be caught between a rock and a hard place.
10:25If they take the affidavit of the EC at face value and say the decisions were unanimous,
10:30the political opposition and critics will say the judiciary has succumbed much as what you are
10:35saying today. Look, there is no doubt judiciary succumbed on the first day when SIR was challenged
10:41before the court. It was their duty on that day to have stopped the SIR exercise the way it was
10:47being
10:47carried out. Nobody says there is no power. It's a question is the manner of exercise of this power is
10:53extraordinarily arbitrary and it is completely, you know, carried out in a manner which is helping
11:00the political party in power at the center. I mean, we may be right, we may be wrong, but truth
11:06needs
11:06to be brought out. And I have a very serious doubt in today's circumstances in the country,
11:12truth will ever emerge in public forum. You know, this is a senior advocate who's also been the head of
11:18the Bar Association of the Supreme Court, Justice Singh, who's making these comments. Your response,
11:24where does this leave, therefore, the Election Commission's affidavit? And where does this leave
11:29this entire case? Is the judiciary, whether we like it or not, now going to be caught in this
11:34political tug of war over the Election Commission?
11:45Justice Singh.
11:48It is a question to me.
11:49Yes, Justice Singh, are you worried that if the likes of Dushan Dhabi are so critical of the judiciary,
11:54where does this leave the judiciary now when handling a politically contentious case like this?
12:01I have a great respect to Mr. Dhabi, but I am not supporting his version. So far, allegations are
12:12concerned that constitutional authorities are not working properly and they are under the fear.
12:19These authorities are under fear, he is saying. But I feel that all the constitutional authorities are
12:28working within its domain. So allegations against the Supreme Court, judges, Supreme Court, judges,
12:34those who are in the Supreme Court and the Chief Justice of India also, they are not appointed in
12:39the regime of the present government. They have been appointed in the regime of Congress. So allegations,
12:46anyone can raise. Now they are not working freely. But the people have the confidence and we
12:53we must respect our constitutional institutions. Otherwise, there will be no democracy in the
13:00country. If we will say we will blame to the Supreme Court of India, the Supreme Court of India is
13:05not
13:05giving justice to all the litigants of this country and the poor litigants are not getting the
13:15justice and the opponent leaders are not getting justice. It will not be fair enough.
13:20Okay, I am going to leave it there. I am going to leave it there. Justice Singh, Dushan Dave,
13:25for joining me. Clearly, this is getting more and more politically contentious and the Supreme Court
13:30finds itself caught, as I said, between a rock and a hard place, some would say. Dushan Dave,
13:34I am going to leave it there. And Justice Lokpal Singh, I appreciate you.
